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The Department of State’s 2021 Diversity Visa Program (DV-2021) registration opens October 2, 2019!

Tuesday, September 24th, 2019 by Heather Fathali

 

Online registration for the DV-2021 Program begins on 12:00 pm (noon), Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 2, 2019, and concludes on 12:00 pm (noon), Eastern Standard Time (EST) (GMT-5), Tuesday, November 5, 2019.

The entry form must be submitted during this period, and entries may only be submitted online at https://www.dvlottery.state.gov/.

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 Kenya but is a citizen of Canada and resides in Canada, they remain chargeable to Kenya 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 https://www.youtube.com/watch?v=tOQlh2d2EbQ&feature=youtu.be. Instructions are also available at https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-Instructions-English.pdf.

DV-2021 Entrants will begin to be able to check their entry status starting May 5, 2020, until September 30, 2021. Entrants may only check their status by entering their confirmation information at https://www.dvlottery.state.gov/; 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-2021 Entrants should keep their confirmation number until at least September 30, 2021. (Status information for the previous year’s DV program, DV-2020, is available online through September 30, 2020.)

The list of DV-2021 countries is available in the official DV-2021 Program Instructions, and is also copied below:

 

LIST OF COUNTRIES/AREAS BY REGION WHOSE NATIVES ARE ELIGIBLE FOR DV-2021

The list below shows the countries whose natives are eligible for DV-2021, 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-2021 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.

AFRICA

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.

ASIA

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.

EUROPE

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.

NORTH AMERICA

The Bahamas

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

OCEANIA

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

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN

Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Chile, Costa Rica, Cuba, Dominica, Ecuador, Grenada, Guyana, Honduras, Nicaragua, Panama, Paraguay, Peru, 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, Guatemala, Haiti, Jamaica, and Mexico

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Posted in General |

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Monday, August 12th, 2019 by W. Scott Railton

USCIS announced today the upcoming publication of a final rule on public charge requirements for immigration purposes. “Rule” really misstates things, as the proposed rule change will weigh in at over 800 pages. What does this mean?

In a few words, immigration and naturalization are getting harder. For some, it will be because they can’t reach the new heightened standards for proving that their immigration will not become a burden on U.S. taxpayers. For all, it will mean the application process will become that much more burdensome, as applicants have to overcome red tape requirements to prove their eligibility to immigrate or naturalize.

When a new rule with this level of complexity rolls out, there is a learning curve for the government decision-makers as well as for the applicants and their advisors.  Rarely do things become more clear; usually, the rules beget further questions and administrative burdens.

Restricting immigration has proudly been the cornerstone of this Administration’s agenda. This new rule will give officers at USCIS, and perhaps CBP and the State Department, greater ability to refuse immigration benefits. Immigrant advocates are also saying this rule will deter noncitizens from seeking all manner of benefits, in fear of hurting their chances to immigrate. I anticipate the rule or some part of it will soon be challenged in federal court. There will be other unintended consequences, surely, due to the breadth of its potential impact.

This is headline news, and much more will be written and said on this. For now, here’s the announcement from USCIS:

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Regulation promotes self-sufficiency and immigrant success

WASHINGTON — Today, the U.S. Department of Homeland Security (DHS) announced a final rule that clearly defines long-standing law to better ensure that aliens seeking to enter and remain in the United States — either temporarily or permanently — are self-sufficient and rely on their own capabilities and the resources of family members, sponsors, and private organizations rather than on public resources.

This final rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.

“For over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws. President Trump has delivered on his promise to the American people to enforce long-standing immigration law by defining the public charge inadmissibility ground that has been on the books for years,” said USCIS Acting Director Ken Cuccinelli. “Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since. Through the enforcement of the public charge inadmissibility law, we will promote these long-standing ideals and immigrant success.”

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.

The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.

USCIS will provide information and additional details to the public as part of public outreach related to the implementation of this rule. In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

For more information on USCIS and its programs, visit our website at uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

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Posted in General, Scott Railton |

Washington State Department of Licesning On Use of Facial Recognition Technology

Tuesday, July 9th, 2019 by W. Scott Railton

The Washington Post and New York Times recently ran stories concerning the use of facial technology to identify persons via the state driver’s license databases.  Washington State’s Department of Licensing has issued a press release, basically suggesting this is, dare I say, fake news. Here is what the Department of Licensing says:

DOL statement regarding facial recognition technology
July 8, 2019

July 8, 2019 For Immediate Release.

News Reports – ICE and the FBI using facial recognition technology to scan state driver’s license databases.

Statement from Department of Licensing Director Teresa Berntsen:

“National news reports about federal law enforcement and immigration officials’ use of state facial recognition databases has led to a high level of misunderstanding and confusion about how our state Department of Licensing protects this data. Our DOL has implemented strict standards to ensure data is not released to any law enforcement entity for immigration purposes or without a judicial court order or subpoena. There is no external access to the Facial Recognition System. System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”

Background

The Washington Post reported ICE and the FBI using facial recognition technology to scan state driver’s license databases, including photos of legal residents and citizens. The Department of Licensing does not provide access to our Facial Recognition System to local, state, or federal law enforcement entities. They must provide the agency with a court order signed by a judge.

The New York Times states “agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.” The agency received 53 requests through court order or subpoena since 2013. Thirteen of those were federal requests. None have been received from 2017 to present. The remaining 40 were from local and state law enforcement entities.

Federal requests include:

One – U.S. Department of Justice
Two – Federal Bureau of Investigation
Four – Department of Homeland Security/Immigrations and Customs Enforcement
Six – U.S. Drug Enforcement Administration

If a match was found through any request during this time, DOL would provide limited identity information.

DOL’s Use of Facial Recognition Technology

KUOW ran the headline “ICE uses Washington driver’s licenses to hunt immigrants for deportation, researchers say.” This is incorrect. No entity has access to DOL’s facial recognition system. They would provide a photo and DOL would conduct the research.
Law enforcement entities have no access to “mine” DOL’s state driver’s license databases using facial recognition technology.
As of January 2018, all requests must be court ordered.

DOL’s Facial Recognition Process

After receiving a court-ordered subpoena, DOL performs a search by comparing the photo provided by a law enforcement entity with DOL’s database. If a match occurs between the photo provided by the entity with a photo in DOL’s database, DOL provides the individual’s first, middle, and last name, date of birth, and ID or driver license number.
The Department of Licensing does the research. There is no direct external access to the facial recognition system. System access is limited to very few specially trained DOL staff.

Immigration and Citizenship Status

The Department of Licensing does not collect information regarding a person’s immigration or citizenship status.
The Department of Licensing does not collect place of birth.
The Department of Licensing does not provide Social Security numbers.

Governor’s Executive Orders

The Department of Licensing is committed to following the Governor’s Executive Order 17-01 Reaffirming Washington’s commitment to Tolerance, Diversity and inclusiveness.
We fully comply with Executive Order 16-01, Privacy Protection and Transparency in State Government. We only collect information that is necessary to perform our agency duties to establish identification and driving privileges.

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Posted in Scott Railton |

DUI and Immigration Consequences

Friday, June 14th, 2019 by W. Scott Railton

A colleague recently contacted me to ask about a plea bargain deal for a driving under the influence charge. It is always best to consider this sort of thing before making the deal.  Indeed, the Supreme Court says defense attorneys are required to do so.  In the landmark case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court said:

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.'” 253 S.W.3d 482, 483 (Ky.2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney….. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

Now, back to my colleague’s inquiry. I wanted to relay a quick response. Unfortunately, these aren’t always simple matters. Every case is different, on its facts, and the details can very much matter.

The first step in each case is to identify the immigration status and defense goals.  Here are some threshold questions to consider:

  • First, what is the jurisdiction? Laws and consequences differ state to state.
  • Are there any aggravating factors in the case, such as harms to person or property?
  • Is marijuana, legal or not, involved in the case in any way? While it may not be an issue at the State level, it could become a big issue in future immigration applications or proceedings.
  • Is there any other type of controlled substance that is involved in the case?
  • Was the driver licensed? Were they cited for anything beside DUI?
  • What is the driver’s status in the United States? Visa holders with DUI arrests are having their visas revoked automatically.
  • Were there passengers int he car?  Under 16?
  • Is there an alcohol or drug problem? Government guidance usually requires a panel physician examination.
  • Is there any evidence of a physical or mental disorder? This is potentially a separate basis for inadmissibility.
  • Does the individual have trusted traveler benefits, such as NEXUS and Global Entry?
  • Is there a desire to apply for naturalization in the near future, or even a pending application?

U.S. immigration has gotten harder. These are challenging times for even the best qualified applicants. All potential immigration consequences need to be carefully considered before a plea bargain is struck.

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Posted in General, Marijuana and Immigration, Scott Railton |

California, Legalization, and Immigration

Wednesday, December 27th, 2017 by W. Scott Railton

On January 1st, California will join Washington State, Colorado, and others in legalizing the recreational use of marijuana. Proposition 64 was passed by the voters of California in November, legalizing possession of up to one dry ounce of marijuana. Federal government officials are already saying that they will continue to enforce the Controlled Substances Act, which treats cannabis the same as heroin and LSD. As with other legalized states, the federal/state conflict of laws will persist, uneasily.

One group caught square in the middle are the noncitizens.  Noncitizens include lawful permanent residents, temporary visitors, undocumented aliens and all others who are not U.S. citizens.  Noncitizens routinely have to deal with the Federal Government: immigration court proceedings, applications for immigration benefits (e.g. naturalization, work authorization, permanent residence, green card renewal), seeking entry to the U.S.; CBP checkpoints; visiting national parks; and so on.

Immigration law can be very harsh for the noncitizen when it comes to marijuana. We have seen people denied entry, denied green cards, and denied naturalization, all in relation to legalized marijuana. This year, I wrote extensively on Marijuana and Immigration for the American Bar Association’s Criminal Justice magazine.

In a nutshell, the federal government does not need a conviction to find a person inadmissible to the United States. Inadmissibility can be established with an admission to the essential elements of a controlled substance offense; a “reason to believe” a person is engaged in drug trafficking, or a family beneficiary of its proceeds; misrepresentation; a determination that a person is a drug abuser or drug addict; or for being inadmissible at time of entry. Employment in the budding industry can also have unintended consequences. The laws for removability are different but similar. The legalities can get real complicated, fast, but the point is marijuana and immigration do not mix well.

USCIS officers will  sometimes ask questions about the legal use of marijuana, and this may lead to the denial of adjustments of status and naturalization applications. CBP officers will also ask, and deny admission based on admissions. CBP checkpoints are another point of contact where the issue may arise.  Other things will trigger immigration questions, such as finding marijuana on a person or in their car based on a stop on federal land (e.g. National Park), admission to past illegal use, or marijuana involved in a non-removable offense, such as a DUI.  The agencies are inconsistent in their application of the law.

Legalization will be terrific for immigration in some regards. Minor marijuana convictions in the past have created a basis for removability. These prosecutions in state court will not continue, and thus, they will no longer form the basis for removability. This alone could lead to keeping more families together, decreasing court dockets, and increasing government focus on other concerns.

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Posted in General, Scott Railton |

Staying Admissible To The United States

Friday, July 28th, 2017 by W. Scott Railton

We frequently meet with Canadians and other nationals who are concerned about their admissibility to the United States. We also advise Canadian defense attorneys about the consequences of a plea or conviction on United States admissibility. Frequently, persons arrive at the border, seeking entry, only to learn that they are inadmissible (or so the government says), and that they will need a waiver.

Here are some tips on admissibility issues, from my perspective as an immigration attorney:

1. Foreign pardons and expungements do not typically help with U.S. immigration. A conviction vacated for substantive reasons might overcome inadmissibility.

2. The sealing of criminal records can present an obstacle for U.S. immigration purposes, as the burden of proof for admissibility is upon the applicant. The U.S. government will want to see those records, even if they’re under seal.

3. Temporary visitor waivers are available, but they are costly and take months to adjudicate, and must be renewed every five years. Permanent waivers for immigrants are more challenging, but are sometimes available, depending on the past offense.

4. The definition of a conviction under U.S. immigration law includes more than just convictions. Admissions of guilt in the record may count too.

5. Any conviction “related to” controlled substances is a basis for inadmissibility. U.S. immigration law is particularly hard on all controlled substances issues. Marijuana is still considered a controlled substance under federal (national) law, even though many states have legalized.

6. Drug abuse, drug addiction, and alcohol abuse are bases for inadmissibility without a conviction. When applicable, the U.S. Government may require an expert opinion from a U.S. authorized civil surgeon on whether a person is a drug or alcohol abuser prior to admission to the United States.

7. A person is inadmissible if the government has a “reason to believe” that she is or has been a drug trafficker.

8. In general, sentences of less than a year are better (e.g. 364 days or less) to avoid the possibility of having a conviction deemed an “aggravated felony” under U.S. immigration law.

9. Misrepresentation at the border is a basis for a lifetime ban from the U.S. They may search the phone or computer, interview friends and employers, and otherwise double-check to see if someone is lying. Lifetime ban if they make that determination, which in time can be overcome through the waiver process.

10. The U.S. law on inadmissibility is a complicated area of law even for U.S. lawyers, including U.S. immigration lawyers. If there are concerns, it is best to consult with us, or someone like us. If worse comes to worse, it may be better to stop answering questions, and ask to withdraw the application for admission.

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Posted in General, Scott Railton |

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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Posted in General, Scott Railton |

Ninth Circuit Rules on Travel Ban/Refugee Order in Hawaii v. Trump

Wednesday, June 14th, 2017 by W. Scott Railton

The Ninth Circuit Court of Appeals ruled this week that President Trump went too far with his modified travel bans. Here is the opening summary of the Court’s decision:

State of Hawaii v. Donald Trump (excerpted)

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in this appeal of the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”), “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The decision is an interesting read. The Court lays out the chronology of the President’s Executive Orders and the resulting suits by the States et al. The Court analyzes the alleged harms presented by Hawaii, with regard to standing: harm to proprietary interests and impairment of its sovereign interests. Ultimately, the Court cites the granddaddy of all cases on judicial review, Marbury v. Madison, and says it will not abdicate its obligation of judicial review.

From there, the discussion surrounds whether or not the President’s Order is clearly within the office’s congressionally delegated authority under 1182(f) of the Immigration and Nationality Act.

The Court examines then whether national security concerns are applied too broadly by exluding persons according to their nationality. The Court concludes, “the Order does not offer a sufficient justification to suspend entry of more than 180 million people on the basis of nationality.” (p.43). The Decision then looks at the Refugee program suspension, and finds the statute does not provide a mechanism for decreasing the statutorily mandated totals.

The Decision only upholds the District Court’s preliminary injunction, finding that lower Court did not abuse its discretion.

The back of the decision reads like screen credits from a movie, with seven pages of attorneys listed as counsel to the case. Many, many amicus briefs.

Of course, at some point, the Supreme Court will weigh in on the Executive Orders and travel bans. I can’t help but note several Constitutional Law 101 cases are cited in this decision. The Decision is grounded in the Immigration and Nationality Act and in an analysis of national security concerns.  The decision does not focus on intent to discriminate or President Trump’s campaign statements. The decision does find that there’s not sufficient legal justification to suspend the refugee program, and lower the number of refugee admissions.

I think the Ninth Circuit basically got it right. As this and other Circuit decisions come out, it becomes apparent that the Supreme Court can approach the issues in a number of ways.  They can look at the President’s bans in terms of Constitutional overreach, or as violating or not violating the First Amendment, or as actions within or not within the authorization of the Immigration and Nationality Act.  In the end, though, I think there needs to be some limit on how far the President can go when it comes to immigration.  In particular, I think the blanket travel bans and refugee suspensions went too far.

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Posted in Scott Railton |

Social Media and Immigration

Thursday, June 1st, 2017 by W. Scott Railton

It is a common refrain: “Be careful what you put on social media!” The idea, of course, is something might come back to bite you later, such as in a job interview.

The immigration authorities–including the consulates abroad, the border officers, and the USCIS interview officers–are interested as well. Through a series of Federal Register notices, the federal agencies have requested authority to collect social media information on persons seeking entry into the United States.

The Department of State today requested emergency approval of a supplemental questionnaire to be used in select visa interviews. Of course, the facial reason for the request is to identify true terrorist threats, which everyone wants. The questionnaire seeks information going back 15 years, instead of the standard 5 years, and collects information on family relatives, employment history, and travel history (including source of funding). The questionnaire also asks for “all social media platforms and identifiers, also known as handles, used during the past five years.”

Similarly, the Department of Homeland Security’s border security agency, Customs and Border Protection, published notice of its intent to collect social media information platforms and handles in February. The announcement garnered the attention of the American Civil Liberties Union and the Electronic Frontier Foundation, as well as many media outlets. In 2016, the agency added an optional field to its visa waiver form so that applicants could volunteer their social media handles.

Immigration authorities have a great deal of discretion in seeking information to make determinations of admissibility. It seems that the agencies are quickly moving in the direction of requiring that social media handles be provided as part of the application process.

As with all expansions of government authority, there will be intended and unintended consequences. Terrorists and zealots use social media to find new recruits. Theoretically, social media might help identify someone who should not be issued a visa or admitted. Of course, this presumes that the bad-actor volunteers their information in the first place. While unlikely, developing a repository of such information could theoretically provide security dividends.

There are other considerations. The ACLU and EFF point to privacy interests. The digital age feels different, when it comes to search and seizure, with so much information retained on devices, in the cloud, and on social media platforms. Some of the privacy issues will inevitably be litigated. In general, I expect the courts to favor the national security interests inherent in border searches, though not without some measure of reason.

We increasingly observ officers walking over to a computer to conduct “Google” searches of applicants for admission. In fact, this does seem to be more common with the new Administration. I expect there will be even more digital searches, as agents peruse social media histories, to form an opinion on the person before them. Intrusive, yes, but also at times inefficient. These searches take time, and lead to more questions, which also takes time, and leads to frustrations. Most people are on several social media platforms. It’s not hard to picture someone being penalized for failing to volunteer their Instagram account, while yet disclosing Facebook, Twitter, and Linkedin. It’s also easy to imagine that nonsensical lines of questioning will be more common. Fishing expeditions.

The agencies are really only formalizing something they already do in select cases. Every week I hear of persons who were asked for passwords to their computers and phones, as well as social media handles. The question with these Federal Register notices is whether this is going to be routine for all travelers. How often and how deep will they choose to dig? Hopefully, these requests for social media information handles catch terrorists and other bad guys, and don’t become just another burden on travelers to the U.S.

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NAFTA Renegotiations and the TN Professional

Thursday, May 25th, 2017 by W. Scott Railton

On May 18, 2017, the U.S. Trade Representative informed Congress that President Trump intends to commence negotiations with Canada and Mexico with respect to the North American Free Trade Agreement. On May 23rd, the Office of the United States Trade Representative published notice in the Federal Register, requesting comments on negotiating objectives regarding modernization of NAFTA.

The summary of the notice states that “NAFTA was negotiated more than 25 years ago, and while our economy and U.S. businesses have changed considerably over that period, NAFTA has not. The United States seeks to support higher-paying jobs in the United States and to grow the U.S. economy by improving U.S. opportunities under NAFTA.”

The Notice seeks written comments by June 12, 2017. A hearing will be held on Tuesday, June 27, 2017 in Washington D.C. Any intent to testify must be submitted by June 12th, 2017.

What do we know?

Trump originally said that he would pull the United States out of NAFTA, wholesale, but it appears advisors have prevailed upon him to renegotiate. America is quite ingrained in trade of all sorts with Canada and Mexico, and an abrupt cessation would be harmful.

Trump is serious about curtailing immigration, legal and illegal, by all indications. He’s also serious about trying to protect the U.S. worker. These facts do not bode well for the TN category as a whole.
The occupation schedule for TNs is roughly 25 years old, and way out of date. There is need for modernizing the schedule, provided such efforts are made in good faith.

Many sectors are impacted by the TN visa. Hospitals rely on the TN to employ nurses, physicians (research/teaching), recreational therapists, physical therapists, pharmacists, medical laboratory technologists, and others. Institutions of higher education use the TN to employ professors. Municipalities use the category to employ urban planners. Several professions in agriculture are represented, including soil scientists, sylviculturists, animal breeders, animal scientists, and horticulturists.

This Administration takes pride in disruption.

Ultimately, I expect many employers will push back on limitations, but there could be much debate. Unions and workers may have much to say. NAFTA involves all sorts of trade issues, and immigration may be pushed to the side, or not given sufficient discussion. There has been a tendency in recent years to limit immigration in trade agreements.

This is an important time for businesses and business organizations to be vocal on this point. Employees in TN status need to pay attention, as the prospective unavailability of a TN needs to at least be considered. Persons with paths to immigrate will need to consider the TNs nonimmigrant requirement, before making any application or traveling abroad.

We’ll keep monitoring developments with NAFTA and the TN professions, and are available to discuss.

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