Posts Tagged ‘Trump’

The Impact of the U.S. Federal Government Shutdown on Immigration

Wednesday, December 26th, 2018 by W. Scott Railton

The U.S. Federal Government is in shutdown mode, due to a budget fight over President Trump’s desire to build a wall on the southern border. Brinkmanship has become increasingly common in D.C., and the taxpayers usually pay the price. Shutdowns are expensive–agencies function like computers with malware installed, if at all; businesses and personnel are harmed; and there are inherent costs in shutting down and starting up anew agency work.  Thankfully, the term “shutdown” is a misnomer, as many “essential” services continue on.

Immigration involves several federal agencies and bureaus, and so impacts vary overall. Our clients are most concerned about applications for immigration benefits, which are principally handled by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State. Because these applications are supposed to be fee-supported, impacts of the shutdown tend to be collateral impacts. The government will continue to adjudicate most applications. Below, I’ve pasted a press release from USCIS on how they’ll handle things.

Due to a peculiarity in funding, the Department of Labor (DOL) will continue to adjudicate matters, including PERMs, prevailing wage requests, and labor condition applications.

The Immigration Courts were initially closed. The Executive Office of Immigration Review is moving forward with detained cases as scheduled, and are rescheduling non-detained cases.

The U.S. Customs and Border Protection, which runs the border, is considered “essential” business, and so they will carry on through the shutdown. However, the Nexus office is not processing new applications, to the misfortune of some.

Ironically, E-Verify and related programs are shut down, which unfortunately is causing headaches for some employers who are required by government contract to use E-Verify.

Department of Justice civil litigation is curtailed or postponed, to the extent possible. Litigation is deadline driven, and so as the shutdown continues, this creates issues for judges and private litigants.

Here’s a memo from USCIS on the shutdown:

Lapse in Federal Funding Does Not Impact Most USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications for benefit requests, except as noted below.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program). Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
  • Conrad 30 Waiver Program for J-1 medical doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.


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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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President Trump’s Executive Orders

Saturday, February 4th, 2017 by W. Scott Railton

As widely reported, three Executive Orders affecting immigration have been issued by President Trump’s new administration. Additional draft memos, heavy on enforcement, have also been leaked. We are following these administrative developments on a daily basis, and are available to discuss. While we of course want national security, we stand with immigrants and our proud national heritage of being a welcoming country. America is not just a nation of immigrants; America is THE nation of immigrants. We hope this continues, and will fight to make it so. Immigration is our strength as a nation.

Executive Orders are not statutes. They are orders to the administration on how to implement existing law, though Presidents may effectively make law with some orders. The Republicans were highly critical of the Obama Administration for its executive orders and actions regarding immigration. Texas and a number of other states challenged the constitutional validity of Obama’s actions, ending with a 4-4 split in the Supreme Court.

Now the shoe is on the other foot. President Trump’s executive actions are completely different, but courts are already restraining parts of them. Today, Judge James Robart of the Western District of Washington issued a temporary restraining order on the temporary ban placed upon nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan and Libya. Washington State, joined by Minnesota, alleged violations of the First Amendment (Establishment Clause), the Fifth Amendment’s Equal Protection and Due Process clauses, the Immigration and Nationality Act, the Administrative Procedures Act, the Convention Against Torture, et al. The judge determined the States are likely to prevail, and there is risk of irreparable harm to citizens of the State. These risks included immediate harm to families, the high tech industry, and education, amongst others. The Order is effective nationwide, on a temporary basis, and the matter is now before the Ninth Circuit Court of Appeals.

Meanwhile, in Boston, a federal judge today refused to extend the temporary restraining order which was issued last week. Litigation has ensued in other jurisdictions, such as Chicago. And so it goes, elsewhere around the country.

The order imposing certain travel and refugee bans was not properly vetted, and the rollout has been described as amateurish.  By most reports, agencies struggled with aspects of the orders, such as whether the bans applied to permanent residents and dual nationals.  No consideration was given for special immigrants, who have acted as interpreters in the fight against terrorism. The complete ban has caught students, including doctors in the middle of their residencies, unawares. Some of the issues are getting addressed, but smart policy requires careful review, and some of the mistakes were clearly avoidable.

Where Obama was accused of creating a blanket amnesty, Trump is instituting blanket bans of immigrants classes (refugees for 120 days, Syrian refugees indefinitely, et al.), and effectively those of the Muslim religion from specified countries. The orders are justifiably criticized for omitting several countries which have originated terrorists. Clearly, President Trump is pushing forward with fulfilling his campaign promises, and is intent on showing he will be a President of action. Campaign politics and sound government policy are two very different things sometimes.

So far, the State Department revoked somewhere between 60,000 and 100,000 visas from the seven countries, depending on the report. After Judge Robart’s decision, the Department of State is reporting that these are reinstated, unless physically revoked. Persons departing the country on a revoked visa will have to interview again for a new visa. Travel is therefore inadvisable in most affected cases. In light of last weekend’s events, it may be advisable to consult with an immigration attorney before traveling abroad, at least in the short term until things settle down.

Trump said he’d build a wall and Mexico would pay for it. He said we are going to get control of the border. His executive order on border security calls for an increase in 5000 Customs and Border Patrol agents. CBP is already the largest law enforcement agency in the U.S. The agency’s union endorsed him, a fact he proudly touted. Perhaps this is because his election would be good for them, as it seems is the case.

There will be a large effort to  build detention facilities along the border, if Congress appropriates the funds. The growth in the detention business over the past 10 yeas has already been exponential. The Obama Administration deported over 400,000 persons per year. These numbers may reflect “catch and release” actions—a practice Trump has now stricken. There will be a lot of jobs and construction related to this burgeoning detention business. Immigration enforcement, whether it be detention or walls, is big business for contractors.

Locally, know that the Trump Transition Team asked CBP for information about building a wall on the U.S.-Canada side. Nothing definite, and it seems unlikely. It appears they were just looking to identify what studies have been done. The border security order also calls, once again, for the implementation of an entry-exit system, to better keep track of arriavals and departures in the air, land, sea, and in between. The government has been working on this since at least 1996. Some progress has been made as technology has improved, and the work continues, apparently.

The complete ban on refugees to the U.S. is horrific, given the U.S.’s means to accommodate, and its role as a leader in the world. The world is in the midst of the greatest refugee crisis since World War II. The U.S. has a role to play with its allies in accommodating refugees, and that role is being shirked. National security concerns are understandable, but over 2/3 of the refugees are women and children. There are better ways. The refugee program involves two to three years of vetting and waiting—it is not the likely path of entry for a terrorist.

The “Enhancing Public Safety in the Interior of the U.S.” Executive Order calls for 10,000 more Immigration and Customs Enforcement (ICE) agents. ICE is the agency that handles interior enforcement. The enforcement priorities have been elevated from serious crimes to now anyone who has been arrested. This is a significant change in immigration policy, albeit not unexpected with Trump’s election. Adding boots on the ground, a wall, and detention facilities will require significant Congressional appropriations. The intent may be there from the White House, but actual implementation will take some time. In the meantime, there is concern that the agency will begin to conduct worksite raids and be generally more emboldened. It is important that undocumented and persons otherwise out of status know your rights.

The Trump administration wants to reinvigorate the 287(g) program, which makes local law enforcement immigration enforcement. In Washington State, I’ve mainly heard great resistance to this. In Whatcom County, sitting on the border, the perennial question on these programs, right or wrong, is where’s the funding?

Trump is also going after the “sanctuary cities”, by threatening their federal funding. This will be harder than it sounds, and there will be some wait and see. The issues include precisely what it means to “inhibit” a federal effort, and also there is Supreme Court law which says limitations of this sort need to be focused on related programs, rather than wholesale funding cuts.  Federal immigration holds, strictly for immigration purposes, has been held to violate the 4th Amendment, which potentially makes municipalities liable it tort for holding a person too long.

Still to come: possible renegotiation of NAFTA, which has the potential to have great impact on locally, with regard to workers and cross-border business travel. Also, we’re still waiting to hear what the Administration will do about the Deferred Action for Childhood Arrival program. It seems this is on hold for the moment. And, there’s a leaked White House memo calling for evaluation of all business class nonimmigrant statuses, and the enforcement of certain employer compliance measures. We are also watching for changes to trusted traveler programs such as Global Entry and NEXUS, as we understand some statuses have been revoked.

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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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