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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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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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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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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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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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A Time for Advocacy

Thursday, April 13th, 2017 by W. Scott Railton

NDA 2017-Murray

I visited Washington D.C. last week, to take part in the American Immigration Lawyer Association’s National Day of Advocacy. This is an annual event, where my lawyer organization encourages members to meet with Senators and Representatives to discuss immigration issues.

And there are issues. Many issues. Immigration continues to be headline news. Real policy and law-making requires consideration of details and implications. As far as I can tell, Congress is getting nowhere.

This is pretty much acknowledged by staffers. By now, they know the sad stories, such as the Dreamers and the emphasis on deportation. They are aware of the flawed system with H-1Bs and other worker authorizations. They know about the backlogs. Stalemate and non-cooperation leave these challenges for another day, again and again.

I had the opportunity to meet with staffers from the offices of Senator Murray, Representative Larsen, Representative Del Bene, and Representative McMorris Rodgers. Senator Murray and Representative Larsen were able to meet briefly as well. I and my colleagues greatly appreciated the meetings, and we had some good discussions.

Our office stays in close contact with our elected officials.  Last week, my comments focused on things I’m seeing in practice lately, which might not be getting the attention they deserve. CBP officers are taking statements from applicants for admission on past marijuana use, and then barring them for life after people answer truthfully that they did, in fact, inhale. They are also doing extensive searches of people’s phones and computers, without reasonable suspicion. USCIS is issuing requests for evidence on cases without justification, at ever increasing rates. Physicians are getting caught up in the administrative dysfunction, with the suspension of premium processing and rotations turning over mid-summer. Also, the Conrad program for physicians who serve underserved communities is caught in the undertow of the more controversial EB-5 renewal. And of course, our national security has been harmed by some of the thoughtless policies that have been proposed. I also see that clients are just plain concerned.

It is a time for advocacy. I believe that America is still a nation of immigrants. America has gone through phases before. I also believe our Bill of Rights protects people from injustice, including noncitizens and immigrants. So, it’s a good idea to keep calling on our elected officials, and be engaged. That’s what we’re doing.

(Photo taken by our colleague Erin Zipfel, with Senator Murray and other colleagues)

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Administrative Actions Making Immigration Harder

Wednesday, April 5th, 2017 by W. Scott Railton

I am often asked whether the Trump Administration is impacting immigration law. The headline news concerns travel bans from certain countries and refugees, and this indeed is impacting noncitizens. I routinely hear from professionals who are concerned about their eligibility for benefits under the new administration. Their anxiety is real. Human Resource Departments feel the stress too, as key employees send emails and phone busy staff, with palpable concern. The undocumented communities are very anxious about police coordinating with ICE, as the Administration makes overtures towards “sanctuary” cities and enforcement policies.

Here are a few things that have occurred recently that may not be getting as much press coverage:
1. USCIS recently issued a memo revoking old guidance on computer programmers, and encouraging adjudicators to take a longer look at whether computer programmer positions are actually specialty occupations. Information technology professionals cover about half of the annual quota for H-1Bs professionals.

2. Recently, some ports of entry began to say that Advanced Nurse Practitioners do not qualify for TN status as registered nurses, despite historic practice. This means there is increased risk in traveling abroad for RNs who are ARNPs, as well as with renewals. It does not appear this is a universal interpretation.

3. Premium processing for H-1Bs–which guarantees 15 day adjudication for the price of $1225- is suspended as of April 3rd. USCIS has a considerable backlog on H-1Bs that they need to manage, but there is no confidence that they’ll be able to do this without this program, which, by the way, generates substantial revenues. In particular, physicians who complete their residencies and take on new fellowships on July 1st are particularly concerned.

4. Searches of electronic media at the border have gone up considerably. The Guardian referred to this as a digital strip search. CBP asks for a password, and then takes a person’s phone or computer to another room, and comes back a while later, having scanned photos, emails, and other confidential information. Often, they offer no reason for the search—they just claim the authority and proceed.

5. The border is also asking more frequently whether a person has ever smoked or used marijuana. If the person responds yes, during a sworn statement, the agency is then finding the person inadmissible and requiring them to get a waiver. Waivers cost $585 for Canadians, and take months to process.

6. The Department of State has issued cables to its consular officers requiring them to “improve visa applicant vetting” and to implement “the concepts undergirding the Presidential memorandum.” Also, a hiring freeze was ordered, which will eventually further backlog appointments.

7. Contractors are lining up to build the wall.

8. ICE is deporting persons who have had deferred action and persons who are showing up for USCIS appointments. These have included family members, DREAMers, and other non-criminals.

Make no mistake—the Administration is not just focused on illegal immigration. The Administration is focused on limiting all immigration, and is implementing immigration procedures which effectively do this, even before pursuing a legislative agenda. These measures add complexity and require added time for all immigration processes.

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Trump’s Team of Restrictionists

Tuesday, December 6th, 2016 by W. Scott Railton

the-white-house-1623005_1280We’re following the Trump transition with great interest. Unsurprisingly, most of the appointees are anti-immigration. Persons opposed to immigration are sometimes called “restrictionists,” since they favor immigration restrictions. Obama had his “team of rivals;” Trump is building his team of restrictionists.

Here’s a brief rundown on the appointees so far:

Steve Bannon, Chairman of Breitbart News, has been named Trump’s Chief Strategist, on equal footing with the White House Chief of Staff. Mr. Bannon’s anti-immigration and anti-globalism/nationalism views are a matter of record. For instance, he has been critical of the fact that there are so many CEOs in Silicon Valley who are immigrants. He’s probably the most criticized appointee so far, based on charges of racism.

Long-time Alabama Senator Jeff Sessions will be nominated to head the Department of Justice, as U.S. Attorney General. The DOJ runs the immigration courts. For as long as I’ve been involved in immigration advocacy, Senator Sessions has been one of the leading voices for restricting immigration in the Senate. He has stood in the way of many key reform bills, including various versions of the DREAM Act.

Rep. Tom Price of Georgia has been tapped for Health and Human Services Secretary. He is on the record as favoring eliminating birthright citizenship and requiring that government services be only offered in English.

National Security Advisor appointee Michael Flynn tweeted in February that “Fear of Muslims is RATIONAL.” He has expressed strong opposition to admitting Muslim refugees.

And then there’s Ben Carson, former Presidential candidate and now Trump’s Housing and Urban Development appointee. He has said, if elected, that he would eliminate any benefits that might attract persons to enter illegally.

Not to forget Vice-President Mike Pence. He has a 100% voting record on immigration, according to the Federation for American Immigration Reform. The Southern Poverty Law Center has called FAIR a hate group. Pence supports the wall, ending birthright citizenship, and declaring English as the official language of the U.S.

There’s more to come, too.

Kris Kobach, currently the Secretary of State for Kansas, has been a key advisor to Trump on immigration, and is reportedly in consideration for leadership roles. He is the architect of several anti-immigration state plans, such as Arizona’s SB 1070, which was litigated in the Supreme Court. Kobach supports bringing back NSEERs—a failed registry system—and building the wall. He’s been mentioned as a possible DHS pick, and regardless, is sure to be a continuing advisor on immigration matters.

Also, there is the matter of a vacancy on the U.S. Supreme Court. If President-elect Trump keeps his word, we’ll see an appointee in the mold of Justice Scalia, an original constructionist of the Constitution. Six of the current justices are over sixty-five years old, and two – Ginsburg and Kennedy – are over eighty. Key immigration decisions this last term have covered administrative actions by President Obama on immigration, and how long persons can be detained (months? years?) while awaiting immigration proceedings.

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Trump’s Immigration Reforms, Speculatively

Friday, November 11th, 2016 by W. Scott Railton

President-Elect Trump says, “We’re going to look very strongly at immigration.” Immigration and border security were cornerstone issues of his campaign. The Republicans have majorities in the Senate and the House, and he has the ability to appoint at least one Supreme Court judge immediately. The path seems pretty clear for major immigration reforms.

We’ve been receiving client queries, understandably concerned. I think we have to anticipate some pretty big changes, most of which will restrict immigration. Some of these changes may come very early in the administration, while others will take some time.

Here are a few thoughts:

• The Deferred Action for Childhood Arrivals (DACA) program is in jeopardy. This is a program created by the Obama administration without Congressional approval. Trump has threatened to undo many executive orders, and this program will receive scrutiny. Each case has to be evaluated on its own, but non-profit organizations which we respect are advising, generally, to not file new cases for DACA benefits, not travel on advance parole, and consider renewal applications on a case-by-case basis.

• NAFTA TN categories may receive new scrutiny. Trump was very, very critical of NAFTA during his campaign. NAFTA includes provisions for the TN work authorization for certain professions. There is some discussion among experts that even if NAFTA is scrapped, a Canadian Trade Agreement would be possible. Canada has already expressed interest in re-negotiations and improving the terms of the trade deal. From my perspective, there is much room to improve upon the TN schedule of professions, but HR departments and employers would be harmed by doing away with the category. For example, lots of hospitals take advantage of the RN category.

• Expect changes to the H-1B Specialty Occupation program. Trump’s team of advisors have been critical of this program for a long time. I imagine they’ll raise filing fees and/or cut quota numbers; heighten compliance measures; and perhaps introduce a soft labor market test. It might take some time to do this, but legislation of this sort is already drafted.

• Executive Orders issued concerning immigration may be stricken on “Day 1,” according to Trump. Countervailing order may be issued in some cases.

• There will likely be proposals to revise the immigrant visa quota system, with a greater emphasis on merit and employment based immigration, as opposed to family-based immigration.

• Some sort of wall on the southern border will be proposed. A hallmark of Trump’s campaign was that he would build a wall, and Mexico would pay for it. Cost of the border security measures will be the issue, and it will likely be cash-grab for defense contractors.

• A repeal of the Affordable Care Act may impact some immigrants. Any extension of government aid to immigrants will likely be curtailed.

• Electronic work authorization verification (E.g. E-Verify) will be first encouraged, perhaps through incentives, and required after legislation passes.

• Various temporary work authorization programs may be limited or cut (e.g. Temporary Protected Status, H-4 work authorization, temporary work authorization while applications are pending). Regulations related to these programs may be changed relatively quickly via emergency processes.

• Immigration Court proceedings may be streamlined, as far as the administration can get away with, similar to how things were after 9/11.

• Many immigrant advocacy groups are publishing advisories. We like the Northwest Immigrant Rights Project and their work. The National Immigration Law Center is another good organization.

• Senator Mitch McConnell said this week that immigration discussions will be conducted behind closed doors, and then presumably pushed through Congress. The Center for Immigration Studies is a well-known think-tank in favor of reducing immigration, and has published various ideas on how to do so. They have been waiting a long time to help re-write U.S. immigration law, and this seems to be their time.

U.S. immigration is what we do. We will of course be following developments closely, periodically posting here, and writing and speaking elsewhere on the subject. Now is a time when employers really want to pay close attention to potential changes in the law, and make themselves heard when necessary. Changes will have both intended and unintended consequences, and may come fast. Now is also a time to consider whether employer compliance with immigration law is in good shape. We can help.

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Posted in General, Scott Railton |

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