News from the Alliance of Business Immigration Lawyers Vol. 13, No 9B • September 18, 2017
1. President Orders End of DACA in Six Months, With Mixed Signals About Future for ‘Dreamers’; Two Lawsuits Challenge Program’s Termination -President Trump has ordered the end of Deferred Action for Childhood Arrivals, an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as “Dreamers.” The order takes effect in six months and affects nearly 800,000 people. At least two lawsuits challenge the legality of ending the program.
2. President Signs Legislation Extending Several Programs Under Disaster Relief Act -Among other things, the legislation extends the Religious Worker, Conrad State 30, EB-5, and E-Verify programs until December 8, 2017.
3. ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During Rescues -The Department of Homeland Security said that “DHS will not conduct non-criminal immigration enforcement operations in the affected area.”
4. Ninth Circuit Rules Grandparents, Cousins, Others Exempted From Travel Ban; Supreme Court Intervenes -A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review, contrary to the administration’s interpretation of a June Supreme Court ruling. The Ninth Circuit panel also rejected the Trump administration’s ban on refugees formally accepted by resettlement agencies. The Supreme Court blocked the refugee part of the Ninth Circuit’s ruling.
5. EB-1, EB-3 Categories Show Progress in Visa Bulletin for October -Several developments in employment-based categories were announced in the Department of State’s Visa Bulletin for the month of October 2017.
6. Registration for Diversity Visa Program for FY 2019 Begins in October -Registration for the Diversity Visa Program for fiscal year 2019 (DV-2019) will begin at noon ET on October 3, 2017, and end at noon ET on November 7, 2017. For FY 2019, 50,000 diversity visas will be available.
7. State Dept. Changes Standard for Assessing ‘Residence Abroad’ for F-1 Nonimmigrant Students -The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated with respect to “residence abroad.”
8. State Dept. Issues New 90-Day Rule for Misrepresentation -The Department of State recently updated the Foreign Affairs Manual with a new 90-day rule on misrepresentation.
9. New Publications and Items of Interest -New Publications and Items of Interest
10. ABIL Member/Firm News -ABIL Member/Firm News
11. Government Agency Links –Government Agency Links
1. President Orders End of DACA in Six Months, With Mixed Signals About Future for ‘Dreamers’; Two Lawsuits Challenge Program’s Termination
On September 5, 2017, President Donald Trump ordered the end of Deferred Action for Childhood Arrivals (DACA), an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as “Dreamers.” He said that his administration’s position is that DACA was not statutorily authorized and therefore was an unconstitutional exercise of discretion by the executive branch. The order takes effect in six months. The rescission affects nearly 800,000 DACA recipients.
Based on “guidance from Attorney General Sessions and the likely result of potentially imminent litigation,” the Department of Homeland Security’s Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration’s June 15, 2012, memorandum that created DACA. Ms. Duke explained, “As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.” Ms. Duke said that “no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on.”
President Trump’s statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients “generally” will not be affected: “DHS’s enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients.” He said that renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017, for people whose current EADs expire between September 5, 2017, and March 5, 2018, will be processed. He also said that all pending applications for advance parole by DACA recipients “will be closed and associated fees will be refunded.” In a related tweet on September 7, 2017, President Trump said, “For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about – No action!”
Hinting that the end of the DACA program might not necessarily be the end of the line for the Dreamers, President Trump also tweeted on September 5, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”
On September 6, 2017, the attorneys general of more than a dozen states and the District of Columbia sued the government to stop the DACA program’s rescission. The lawsuit argues that the repeal of President Obama’s DACA order violates the Administrative Procedure Act, is motivated by discrimination against Mexicans, and violates due process. The University of California filed a similar suit on September 8, 2017, against the Trump administration for violating the rights of the university and its students by rescinding DACA on “nothing more than unreasoned executive whim.”
ATTORNEY GENERAL SESSIONS’ LETTER TO ACTING SECRETARY DUKE
ACTING SECRETARY DUKE’S MEMORANDUM
COMPLAINT BY VARIOUS STATE ATTORNEYS GENERAL
UNIVERSITY OF CALIFORNIA’S COMPLAINT
2. President Signs Legislation Extending Several Programs Under Disaster Relief Act
The U.S. Senate and House of Representatives recently passed the “Disaster Relief Appropriations Act, 2017” as part of an appropriations bill to increase the debt limit, fund the government through a continuing resolution, and provide emergency funding for hurricane relief. Among other things, the legislation extends the Religious Worker, Conrad State 30, EB-5, and E-Verify programs until December 8, 2017. President Trump signed the legislation on September 8, 2017.
3. ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During Rescues
U.S. Immigration and Customs Enforcement (ICE) released a statement on September 7, 2017, that appears to temporarily suspend unspecified enforcement actions in areas affected by recent hurricanes:
While we generally do not comment on future potential law enforcement actions, operational plans are subject to change based on a variety of factors. Due to the current weather situation in Florida and other potentially impacted areas, along with the ongoing recovery in Texas, U.S. Immigration and Customs Enforcement (ICE) had already reviewed all upcoming operations and has adjusted accordingly. There is currently no coordinated nationwide operation planned at this time. The priority in the affected areas should remain focused on life-saving and life-sustaining activities.
For the safety and security of our communities, ICE fugitive operations teams will continue to target and arrest criminal aliens and other individuals who are in violation of our nation’s immigration laws, in non-affected areas of the country, as part of routine operations.
A separate statement issued by the Department of Homeland Security (DHS) on September 6, 2017, states, among other things, that “DHS will not conduct non-criminal immigration enforcement operations in the affected area.” The statement also notes, “When it comes to rescuing people in the wake of Hurricane Irma, immigration status is not and will not be a factor. However, the laws will not be suspended, and we will be vigilant against any effort by criminals to exploit disruptions caused by the storm.” DHS also stated that ICE detainees from the Krome Detention Center, Monroe County Jail, Broward Transitional Center, and Glades Detention Center “are being temporarily transferred to various other detention facilities outside the projected path of the hurricane. In the event of transfers, the detainee’s attorney of record is notified, the Online Detainer Locator is updated, and the transfer is temporary in nature.”
4. Ninth Circuit Rules Grandparents, Cousins, Others Exempted From Travel Ban; Supreme Court Intervenes
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review, contrary to the administration’s interpretation of a June Supreme Court ruling. However, on September 12, the Supreme Court blocked the Ninth Circuit’s ruling indefinitely.
The administration had interpreted the Supreme Court’s June reference to close or bona fide family relationships as including immediate family members and in-laws but excluding grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. The Ninth Circuit panel observed, “Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.” Noting that the administration had relied on specified provisions of the Immigration and Nationality Act, the court noted, “The Government’s ‘cherry-picked’ INA provisions recognize immediate family relationships as those between parents, spouses, children, and siblings, yet other provisions of the INA and other immigration laws offer broader definitions for close family.” The court also said that the INA was implemented with the underlying intention of preservation of the family unit, and noted that the administration’s “artificially narrow interpretation of close familial relationships directly contradicts this intention.”
The Ninth Circuit panel also rejected the Trump administration’s ban on refugees formally accepted by resettlement agencies. The court noted that it typically takes a refugee applicant 18 to 24 months to successfully complete the complex, lengthy application and screening process before he or she can be resettled in the United States. The court cited various hardships that would be faced by resettlement agencies, local affiliates, church congregations, volunteers, and landlords if formally assured refugees were barred. The court also noted that refugees’ lives “remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”
The Ninth Circuit’s order was set to take effect on September 12. However, on that date the Supreme Court indefinitely blocked part of the Ninth Circuit’s ruling. For now, the Trump administration’s travel ban remains in effect with respect to refugees who have formal assurances from resettlement agencies. The Supreme Court will hear arguments on October 10, 2017, in a consolidated case challenging the travel ban.
SUPREME COURT’S ORDER blocking part of the Ninth Circuit’s ruling
5. EB-1, EB-3 Categories Show Progress in Visa Bulletin for October
Several developments in employment-based categories were announced in the Department of State’s Visa Bulletin for the month of October 2017.
For the past several months, there has been a backlog for Chinese-mainland and Indian nationals for EB-1. With the new fiscal year, the EB-1 category is now current for all nationalities, and visa applications may be filed regardless of the applicant’s priority date. It is unknown how long this category will remain current.
Also, the September 2017 Visa Bulletin included a cutoff date of January 1, 2012, for China-mainland born EB-3 applicants. It has advanced two years to January 1, 2014. The Department estimates that this cutoff date will move up approximately four months in the coming months.
6. Registration for Diversity Visa Program for FY 2019 Begins in October
Registration for the Diversity Visa Program for fiscal year 2019 (DV-2019) will begin at noon ET on October 3, 2017, and end at noon ET on November 7, 2017. For FY 2019, 50,000 diversity visas will be available. There is no cost to register for the DV program.
For DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-bo