Posts Tagged ‘DHS’

Immigration In A Time of Restrictions

Saturday, July 15th, 2017 by W. Scott Railton

Immigration restrictions are one of the defining characteristics of the Trump Administration, which is now about 6 months in. Each week it’s something new, but the overall picture is the Administration intends to restrict all immigration, however it can.

I know from talking with clients that there is a great deal of fear and concern. Know that despite all the restrictive activity, the agencies are still granting petitions and visas, at least outside of those directly subject to travel bans. There may be longer delays, and the likelihood of increased red tape has to be anticipated. Sometimes, caution is needed, and frankly, competent legal advice is sometimes very valuable. Understanding things ahead of time is more likely to lead to predictable outcomes. This is how we try to help.

Here are some of the latest developments:

  • The Supreme Court will take up the travel ban case this fall.  In the meantime, the Court permitted a revised, limited ban to go forward. Lawsuits immediately commenced, on just how to deal with the Court’s limitations, including whether grandparents could be exempt. As this drags on in Court, I can’t help but wonder if the emergency aspect of these orders is moot. So did SCOTUS, by the way, when they granted certorari. Meanwhile, consulates in certain countries aren’t issuing visas like they ordinarily have in the past. Consular officers have many ways to deny and/or delay visa applications, with or without an official travel ban. There is no judicial review of visa denials. Some consulates have always been tougher than others, but this is different. Recently, I’ve heard of some 35 Pakistani doctors who were unable to get visas for unexplained reasons. Long-time practitioners say they’ve never seen anything like it.
  • The U.S. Trade Representative notified Canada and Mexico that it wishes to renegotiate the terms of North American Free Trade Agreement (NAFTA). Public comments were accepted, and three days of hearings were held in Washington D.C. to gauge priorities. The focus of the discussion seems to be on trade (think Detroit/Toronto auto industry; softwood lumber), but trade in service and immigration was discussed. Some calls were made to update the list of NAFTA TN professions to include Software Designers, Financial Analysts, IT Consultants, Physician Assistants, and Nurse Practitioners. There is a need for an update, as the list is nearly 25 years old, but there is great fear that the list will be excessively limited. We will be monitoring NAFTA TN developments closely.
  • The Deferred Action for Childhood Arrivals (DACA) program continues for now. This program allows certain undocumented “Dreamers” to get temporary work authorization and avoid deportation. President Trump seems in favor of the program. However, several states have joined to challenge the program, and DHS Secretary Kelly says the program may need to end. Attorney General Sessions, historically an opponent when he was in the Senate, is equivocal on whether he will defend the program. Other Obama measures, such as relief for parents of U.S. citizens, have already been officially rescinded.
  • Temporary Protected Status (TPS) is a form of humanitarian relief provided to persons from certain designated countries, where great harms have occurred, or continuing dangers exist. For example, in recent years, citizens of Haiti and Nepal have been able to obtain TPS, due to earthquake and rebuilding. The Administration indicates it may soon cancel TPS statuses in a number of cases.
  • Sanctuary cities is another well-reported flashpoint. President Trump has issued an order to review defund designated as sanctuary cities, and AG Sessions has actively been speaking out on the subject.
  • The Pentagon is looking at canceling its Military Accessions Vital to the National Interest program, which provided a path to naturalization for persons who enlist and who are vital to the national interest. Examples include Iraqi interpreters and specialized medical workers for the military. Our colleague Margaret Stock has been a driving force in the success of this wonderful program. It would be a shame for the program to be pulled, since the troops get much needed support from certain persons with vital skill sets. It’s not hard to fathom that we should take care of interpreters who are helping us fight terrorism.
  • The President’s budget includes substantial funding for planning the wall, and for more boots on the ground for immigration enforcement. It includes $1.5 billion for added interior enforcement and $2.6 billion for Customs and Border Protection.  Expect a full-on debate on these figures soon in Congress.
  • Access to legal counsel is under attack, as the Department of Justice sent a cease and desist letter to NW Immigrant Rights Project, requiring that they file a Notice of Appearance if they are going provide counsel to persons in removal proceedings. NWIRP historically provides limited representation at the Detention Center. For example, they provide education sessions and initial case assessments. DOJ is trying to halt all that. NWIRP has filed suit in federal court.
  • The USCIS Field Offices and CBP Ports of Entry are asking many more questions about use and possession of legalized marijuana. Officers from each agency now have scripts, prepared by counsel, designed to extract disqualifying admissions (e.g. “Yes, I smoked pot, in Washington, where it’s legal.”). These admissions become the basis for denying admission, based on a violation of federal law. Persons with no criminal record denied visas, entry, green cards or naturalization–based only their admission to having used legalized pot at some point. Recently, a group of Congress representatives wrote the agencies for more information on these practices.
  • The Administration also recently suspended implementation of the International Entrepreneur Rule, which was designed to provide noncitizen entrepreneurs of Silicon Valley and elsewhere a pathway to stay in the U.S. and continue to develop their ideas and businesses. Basically, this was another bridge-gap administrative rule by the Obama Administration, to temporarily address a need, since Congress can’t get the job done. While I found the rule awkward, it’s not a bad idea, and would guarantee more American jobs. Its no secret that many, many of the tech companies in the United States have noncitizen founders. The American dream often starts in a garage somewhere. I fear that garage may end up in another country.
  • There has been a spike in persons entering Canada illegally, to claim asylum. This is well-reported, and happening right here in Whatcom County with some frequency. The Third Safe Country Agreement between the US and Canada prevents persons from claiming asylum at the ports of entry in most circumstances, as this would be deemed as forum shopping. However, if persons enter illegally, and arrive on Canadian soil via the U.S., they may claim asylum. There is a growing perception that Canada is more welcoming to refugees.


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The Department of State’s 2018 Diversity Visa Program (DV-2018) registration is now open!

Thursday, September 29th, 2016 by Heather Fathali

Online registration for the DV-2018 Program begins on Tuesday, October 4, 2016 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and concludes on Monday, November 7, 2016 at 12:00 noon, Eastern Standard Time (EST) (GMT-4).

The entry form must be submitted during this period, and entries may only be submitted online at

Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” born in countries with historically low rates of immigration to the United States. A limited number of diversity visas (DVs) are available each fiscal year, which traditionally begins on Oct. 1. The DVs are distributed among six geographic regions (Africa; Asia; Europe; North America; Oceania; and South America, Central America, and the Caribbean) and no single country may receive more than seven percent of the available DVs in any one year. Entrants are “chargeable” according their country of birth, not their current country of residence or citizenship. For example, if a person was born in Iran but is a citizen of Canada and resides in Canada, they remain chargeable to Iran for DV purposes; and may apply for the program despite the fact that Canada is not a DV country.

The U.S. Department of State provides a helpful step-by-step guidance on the program and how to submit an entry at Instructions are also available at

DV-2018 Entrants will begin to be able to check their entry status starting May 2, 2017. Entrants may only check their status by entering their confirmation information at; the U.S. government will not mail out a notice regarding an Entrant’s status, and embassies and consulates will not provide a list of selectees. DV-2018 Entrants should keep their confirmation number until at least September 30, 2018.

The list of DV-2018 countries is available in the official DV-2018 Program Instructions, and is also copied below:



The list below shows the countries whose natives are eligible for DV-2018, grouped by geographic region. Dependent areas overseas are included within the region of the governing country. USCIS identified the countries whose natives are not eligible for the DV-2018 program according to the formula in Section 203(c) of the INA. The countries whose natives are not eligible for the DV program (because they are the principal source countries of Family-Sponsored and Employment-Based immigration or “high-admission” countries) are noted after the respective regional lists.



Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cabo Verde, Central African Republic, Chad, Comoros, Congo, Democratic Republic of the Congo, Cote D’Ivoire (Ivory Coast), Djibouti, Egypt*, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, The Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe

* Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

In Africa, natives of Nigeria are not eligible for this year’s Diversity Visa program.



Afghanistan, Bahrain, Bhutan, Brunei, Burma, Cambodia, Hong Kong Special Administrative Region**, Indonesia, Iran, Iraq, Israel*, Japan, Jordan*, Kuwait, Laos, Lebanon, Malaysia, Maldives, Mongolia, Nepal, North Korea, Oman, Qatar, Saudi Arabia, Singapore, Sri Lanka, Syria*, Taiwan**, Thailand, Timor-Leste, United Arab Emirates, Yemen,

*Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

**Hong Kong S.A.R. (Asia region), Macau S.A.R. (Europe region, chargeable to Portugal), and Taiwan (Asia region) do qualify and are listed here. For the purposes of the diversity program only, persons born in Macau S.A.R. derive eligibility from Portugal, and must select Portugal as their country of eligibility.

Natives of the following Asia Region countries are not eligible for this year’s Diversity Visa program: Bangladesh, China (mainland-born), India, Pakistan, South Korea, Philippines, and Vietnam.



Albania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark (including components and dependent areas overseas), Estonia, Finland, France (including components and dependent areas overseas), Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macau Special Administrative Region**, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands (including components and dependent areas overseas), Northern Ireland***, Norway (including components and dependent areas overseas), Poland, Portugal (including components and dependent areas overseas), Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, Vatican City

**Macau S.A.R. does qualify and is listed above and for the purposes of the diversity program only; persons born in Macau S.A.R. derive eligibility from Portugal, and must select Portugal as their country of eligibility.

***For purposes of the diversity program only, Northern Ireland is treated separately. Northern Ireland does qualify and is listed among the qualifying areas.

Natives of the following European countries are not eligible for this year’s DV program: Great Britain (United Kingdom). Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, South Georgia and the South Sandwich Islands, St. Helena, and Turks and Caicos Islands.



The Bahamas

In North America, natives of Canada and Mexico are not eligible for this year’s DV program.



Australia (including components and dependent areas overseas), Fiji, Kiribati, Marshall Islands, Micronesia, Federated States of Nauru, New Zealand (including components and dependent areas overseas), Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu



Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Chile, Costa Rica, Cuba, Dominica, Ecuador, Grenada, Guatemala, Guyana, Honduras, Nicaragua, Panama, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, Venezuela

Countries in this region whose natives are not eligible for this year’s DV program: Brazil, Colombia, Dominican Republic, El Salvador, Haiti, Jamaica, Mexico, and Peru.

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“Lo Mein Loophole: How U.S. Immigration Law Fueled A Chinese Restaurant Boom”

Tuesday, February 23rd, 2016 by Heather Fathali

From the finest dining, to hole-in-the wall gems, to dim sum, to classic take-out; our nation celebrates it all when it comes to Chinese food. Ever wonder how and why Chinese food became an all-American classic? According to Jennifer Lee, author of the Fortune Cookie Chronicles, there are “some forty thousand Chinese restaurants in the United States – more than the number of McDonalds, Burger Kings, and KFCs combined”!

In large part, it was actually our nation’s xenophobic anti-immigration policies of the 19th and early 20th centuries that sparked this delicious culinary wildfire. Maria Godoy of NPR reports on the fascinating history of an investment-based visa exception to the Chinese Exclusion Act, otherwise known as the “Lo Mein Loophole”:

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Don’t be Caught in the Backlog – Renew Your U.S. Passport Early!

Thursday, January 28th, 2016 by Heather Fathali

Have a U.S. passport expiring in 2016 or 2017? The State Department advises you start the renewal process ASAP to avoid backlogs in processing times. 2016-2017 marks the 10-year anniversary of WHTI, the Western Hemisphere Travel Initiative, which among other things required (for the first time) that U.S. citizens present a U.S. passport when departing or entering the U.S. for air travel within the Western Hemisphere. It also imposed restrictions on the acceptable documents for presentation at U.S. land and sea borders. WHTI resulted in a mad rush of U.S. passport applications, and, because U.S. passports are valid for 10 years, the Department of State now foresees a surge in upcoming renewals.

Depending on your circumstances, U.S. passports may be renewed by mail, in person, and from abroad. The Department of State offers a user-friendly website to assist in the process:

The New York Times offers a great report on the matter here:

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Executive Action Plan for U.S. Immigration Reform

Friday, November 21st, 2014 by W. Scott Railton

After much deliberation, press, and controversy, President Obama announced tonight that he will take executive action to improve the United States’ immigration system. His speech, and various briefing materials, can be found at the White House’s website.  Specifics on the action plan, including border security measures and applications processes, can be found here at the Department of Homeland Security’s website.

Note:  many of the affirmative relief measures will take some time to implement, as the government (and principally Department of Homeland Security) has to create forms, systems and processes for individual applications.  Where the issuance of a regulation is required–which is only true in some instances–there will be lag time to implementation.

The plan is politically controversial.  The President has legal authority to implement broad measures—the question is just how broad that authority goes? As he said in his speech, most of his predecessors have exercised executive action in the context of immigration. The Immigration and Nationality Act delegates broad discretionary powers to the President.  Further, prosecutorial discretion is fundamental to the responsible implementation and enforcement of immigration laws, which falls to the Executive Branch. The limits of these powers may be tested. The Department of Justice issued a legal memorandum, dated November 19th, 2014 (yesterday), which concludes the President can (1) prioritize removals as an act of prosecutorial discretion, and (2) can propose deferred action for relatives of U.S. citizens and lawful permanent residents; but (3) cannot authorize deferred action for parents of DACA recipients, as the President proposes.

The President’s Executive Action is presented as having three critical elements: (1) cracking down on illegal immigration at the border, (2) deporting felons, not families, and (3) accountability – criminal background checks and taxes. Most notably, the action may allow as many as 4 million (or more) persons to apply to come out of the shadows and obtain work authorization, and become part of the tax system.

Our business clients are likely to see significant benefits from the Action Plan, as presented. The Action Plan has language favoring enhanced opportunities for foreign entrepreneurs. The Plan intends to strengthen and extend on-the-job training for STEM graduates from U.S. universities. Portable work authorization shall be made available for high skilled workers awaiting lawful permanent resident status, as well as for their spouses.

The Action Plan also includes measures to improve border security and promote public safety, by focusing on persons who are threats to society. The Action Plan also will seek to promote citizenship public awareness. It has language which provides relief to spouses and children of U.S. citizens seeking to enlist in the military. The Plan also expand the already existing Deferred Action for Childhood Arrivals program to cover additional DREAMers.

Reforms are much needed. In some cases, these measures don’t go far enough, such as where discretionary relief is limited to those with U.S. citizen relatives, or with the range of possible reforms that could help business. There is much good news here for many. I suspect in time many of these measures will be widely accepted, as has seemed to be the case with DACA after two years.

The need for Congress to act on immigration remains. I was on Capitol Hill last week meeting with Congressional offices to discuss immigration matters. My impression, based on the news and these meetings, is that a comprehensive immigration bill is unlikely in the near future. The Action Plan therefore may serve the interests of the people, until Congress can pass a bill, whenever that shall be.

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Deferred Action for Childhood Arrivals Program Set to Commence

Tuesday, August 14th, 2012 by W. Scott Railton

The Department of Homeland Security will begin receiving deferred action applications for certain childhood arrivals on August 15th, presuming the forms have been approved by OMB. The program, announced on June 15th, is a programmatic exercise of prosecutorial discretion by the U.S. government for young persons who entered without status or who are now out of status.

The program will go a long way towards removing the day-to-day fear of deportation that as many as 1.7 million young people in the United States have to live with, while also offering these young persons work authorization and opportunity.

The basic requirements for eligibility are that a person:

1.) Came to the United Stat4es before reaching their 16th birthday

2.) Has continuously resided in the United States since June 15, 2007, up to present time

3.) Were under the age of 31 as of June 15, 2012

4.) Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012

5.) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained your G.E.D., or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States

6.) Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat

7.) Were present in the United Sates on June 15, 2012, and at the time of making the request for consideration of deferred action.

More details on eligibility can be found at

While the government envisions an application process that will be relatively simple for the typical petitioner, there is potential for adverse action against an applicant, particularly if there is any misrepresentation in the application or if there is a disqualifying criminal history.

Any young person considering application should review the whole of the program carefully, and seek out assistance if necessary. USCIS says there is no right of appeal to a denied application, though a denial will not prohibit the payment of a new fee and submission of a new application. Any past criminality in particular merits very close examination, prior to application.

It is possible that the implementation of the deferred action program will affect timelines for other types of applications. USCIS has significantly increased staffing in anticipation of the 1 million-plus applications that it will receive. However, historically, programs like this have created delays for other types of application adjudications. We’ll just have to wait and see. I’m sure the U.S. Government is taking steps to try to avoid this possibility.

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Asia-Pacific Economic Cooperation Business Travel Cards Act of 2011

Tuesday, November 15th, 2011 by W. Scott Railton

The Asia-Pacific Economic Cooperation (APEC) Business Travel Cards Act of 2011 was signed into law by the President this past weekend. Sponsored by Representative Larsen and Senator Cantwell, the law allows business persons and certain government personnel to expedite their visa processing and travel processing and access to designated airport travel lanes, to facilitate their travels.

“The president’s signature on this bill means American business men and women will be able to travel more freely to the Asia-Pacific region, expanding opportunities to export American goods to these important markets,” Rep. Larsen is quoted as saying on his website. “This travel card will level the playing field for American business people traveling overseas, giving them the same expedited travel benefits that foreign travel card holders enjoy when they come to the United States.”

The Travel Cards Act authorizes the Department of Homeland Security to work in coordination with the Department of State to develop cards for qualified travelers to use, to expedite their travel. Qualified persons will be able to have their visa applications reviewed faster, take multiple trips to the 21 APEC countries for three years without obtaining new visas, and use the same customs and immigration lanes at airports that air crews use. The Department of Homeland Security already has multiple trusted traveler programs, such as NEXUS, and so presumably these programs will be the model for processing APEC card applicants.

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