Immigration legislation

UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

A congressional immigration reform proposal passed its first test and was approved by the Senate Judiciary Committee on May 21, 2013.  Action on the bill had been expected before the Memorial Day break, but not so much sooner than the self-imposed deadline. 

The Committee reached a key compromise related to H-1B specialty occupation workers, with the following provisions: 

  • H-1B numbers would increase, from 65,000 per year to a range of between 110,000 and 180,000.
  • Filing fees for H-1B petitions would increase substantially.
  • Employers must recruit U.S. workers but need not offer jobs to all U.S. workers who are qualified.
  • H-1B workers may not be paid less than U.S. workers with the same position, and employers dependent on the foreign workers must pay higher than Level 1 wages to the H-1B workers.
  • Outsourcing through job shops who employ H-1B workers is restricted.

The legislation would treat foreign graduates with U.S. science, technology, engineering or math (STEM) degrees more favorably than those with other degrees, allowing them to skip the H-1B process and apply directly for permanent residence and a green card.

The bill contains widescale changes to immigration law going well beyond H-1B employment.  The next step will be debate of all the provisions by the full Senate   The House has just begun to start releasing its immigration reform bills.

Following are some highlights for the comprehensive bipartisan immigration reform bill introduced in the Senate on April 17, 2013.

H-1B Cap Raised, but New Restrictions on Temporary H-1B Workers.  In an effort promote market-based limits, the annual H-1B cap would be raised from 65,000 to 110,000, and would be adjustable upwards to as high as 180,000 per year if employer requests for H-1B workers rises.  The 20,000 additional H-1B slots currently available for U.S. Master’s degree graduates would be increased to 25,000, but would be limited to U.S. Master’s graduates in science, technology, engineering and math (STEM) fields only. 

However, the bill would also impose onerous new obligations and restrictions on U.S. employers hiring H-1B workers, reportedly including the following:

  • Higher wage obligations
  • Mandatory recruitment of U.S. workers and online posting for H-1B positions
  • Increased filing fees and limits on H-1B hiring for “ H-1B dependent employers” (more than 30 % of a company’s workforce are H-1B or L-1 employees)

Entrepreneur Start-up Visa.  The proposal offers up to 10,000 new temporary visas to entrepreneurs who create at least three jobs, raise at least $100,000 from angel investors, venture capitalists or other investment groups, and generate at least $200,000 in revenue.

Retirees and Snowbirds.  There is a “retiree visa” for purchasers for residences with $500,000 cash or more and also a provision for Canadian snowbird homeowners and renters. 

New Employment Eligibility Verification Obligations for U.S. Employers.  Within five years after the bill’s passage, all U.S. employers would be required to enroll in the E-Verify system.  Large employers would be required to enroll sooner, and mandatory enrollment would be phased in later for small businesses and certain industries (e.g. agriculture).  The bill would also incorporate “photo matching” into E-Verify screening for new hires, requiring employers to certify that the photograph on the identity document presented by the new hire exactly matches an identical photograph in the E-Verify system.

Merit-Based Point System.  A new merit-based option would make green cards available based on education, employment, length of residence, and other considerations.

Re-Allocation of Immigrant Visa Quotas to Clear Backlog.  The bill proposes various reforms to the current employment- and family-based immigrant visa quota system designed to reduce and eliminate visa processing backlogs.  Significant changes include, but are not limited to, the following:

  • Derivative spouses and children of principal immigrants in both employment- and family-based categories would be classified as “immediate relatives,” and no longer be counted toward numerical limits.
  • Many employment-based immigrants would no longer be counted toward annual numerical limits, including all EB-1 categories (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), doctoral degree holders in any field, and some physicians.
  • EB-2 classification would be expanded to include a new sub-category for foreign nationals who earned U.S. Master’s or higher degrees in STEM fields during the past five years, and have an offer of employment in a STEM field.
  • Per-year numerical limits on EB-2 and EB-3 visas would be increased.

W Visa for Lower-Skilled Workers.  The bill proposes a new nonimmigrant, temporary worker category, a W visa for workers to perform services or labor.  It will require registration and certification:

  • The employer must register.
  • The position must be registered.
  • The worker must request and receive certification for W status. 

Employers will need to recruit for U.S. workers for 30 days.  20,000 W visas would be available starting in 2015, with the number increasing to 75,000 in 2019.

 “Blue Card” for Agricultural Workers.  Agricultural workers would be eligible for a new type of legal status work authorization card: a blue card.  Ag workers would not be tied to a single employer.  Wages would be set by the Department of Agriculture, instead of the Department of Labor.  The ag workers must have done the following:

  • Worked in the U.S. ag industry for at least 100 days in the two years prior to December 31, 2012
  • Pay a $400 fee
  • Paid their taxes
  • Have no criminal record

The bill caps the blue cards at about 112,000 for the first five years.  Blue card holders could be eligible for permanent legal residency in five years.

Registered Prospective Immigrant (RPI).  Current undocumented noncitizens could apply for “registered prospective immigrant” (RPI) status with valid work authorization under the following circumstances:

  • Presence in the U.S. since December 31, 2011
  • Passing a background check
  • Paying a $500 penalty fee
  • Paying taxes

RPI status would be available for six years and could be renewed for another $500.  Permanent resident status would be available after payment of an additional $1,000 fee and the following:

  • The border is sufficiently secure.
  • All individuals who are waiting for green cards when the bill is enacted have been processed, that is, those in the country without authorization to the “back of the line.”
  • The RPI possessed the status for 10 years.
  • Tax payments are up-to-date.
  • The RPI demonstrates knowledge of US civics and English.

Path to Residency or Citizenship

The bill does not provide a direct route to U.S. citizenship for those adjusting from unlawful status, but it does not prohibit applying for citizenship.

This week, both President Obama and the Senate announced frameworks for comprehensive immigration reform.  The following is a comparison of key elements in each of the plans.

Path to Citizenship

Similarities:  Neither plan permits a direct route to citizenship.  A foreign national must first become a permanent resident with a “green card,” and then wait, usually for three to five years more, before being eligible to apply for U.S. citizenship. 

Differences:  The Senate would create a commission of lawmakers and border-state leaders to assess when border-security measures have become effective.  Until then, the path would be closed.  However, before then, undocumented immigrants could remain in the United States lawfully by registering, passing background checks, being able to speak English, and paying back taxes and fines for their probationary legal status.

The Obama plan does not establish any border-assessment commission.  It offers provisional legal status and a green card under similar terms as the Senate:  registration, background checks, speaking English, and payment of fees and penalties.  Immigrants on provisional legal status would not be eligible for welfare or other federal benefits.  They would need to get in line for permanent residency and earned citizenship behind others already in the system.

Investors and Highly Skilled Immigrants

Similarities:  Both plans would award green cards to immigrants who obtain advance degrees in science, technology, engineering or math (STEM) from U.S. universities.

Differences:  The Obama plan would create a new category for highly skilled foreign workers in federal science and technology labs.  The Obama plan would create a start-up visa category for job-creating entrepreneurs, and it would expand visa opportunities for those who invest in the United States.

Agricultural Workers

Similarities:  Both plans would permit farm workers in the country without proper documentation to have a path to citizenship. 

Differences:  The Senate plan also would create an agricultural worker program and allow employers to hire immigrants if they can demonstrate that American workers aren’t available.

Same-Sex Couples

Differences:  The Obama plan would allow U.S. citizens and permanent residents to sponsor a same-sex partner for permanent resident status and temporary visas. 

Employment Verification

Similarities:  Both plans would mandate tha employers use electronic employment verification, such as E-Verify, for prospective workers – U.S. and foreign citizens alike – to demonstrate legal status and identity.

Differences:  The Obama plan would have exemptions for some small businesses.  It also would create a fraud-resistant social security card and non-forgeable documents for those without social security cards.

On Friday, June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a Memorandum stating that DHS would shortly grant a temporary immigration status called “deferred action” to certain young people who were brought to the United States as children and “know only this country as home.” Some news articles about the new policy implied that these young people could enlist in the US Armed Forces. Enlistment in the military, however, is not currently a viable option for persons affected by the announcement–although military enlistment is allowed in the DREAM Act. Furthermore, Secretary Napolitano cannot authorize anyone to enlist in the US Armed Forces–except perhaps the Coast Guard, one of the five Armed Forces and the only Armed Force that is part of the Department of Homeland Security.  Thus, the Memorandum will not help those DREAM Act beneficiaries who have sought to join the US Armed Forces.

Unauthorized immigrants are not currently allowed to enlist in the US Armed Forces voluntarily (although they may be drafted, if there is a military draft). People with work permits or “deferred action” are likewise currently ineligible for voluntary enlistment. The announcement by DHS does not change the military enlistment law found at 10 United States Code § 504.  This law limits military enlistments to US citizens; US nationals; lawful permanent residents; certain lawfully present persons from Palau, Micronesia, and the Republic of the Marshall Islands; and certain other persons whose enlistment has been determined by a Service Secretary to be “vital to the national interest.” No Service Secretary has to date authorized the enlistment of people who have merely been granted “deferred action.”

While it is possible that a Service Secretary might someday authorize the enlistment of a person with “deferred action” and a work permit, that has not yet happened. The DHS Memorandum did not expand the categories of non-citizens who are eligible to enlist in the US Armed Forces (which include the Army, Navy, Marines, Air Force, and Coast Guard, and their associated Reserve Components, including the National Guard).

The DHS Memorandum does state that “honorably discharged veterans” who are “not above the age of 30” and who were “present in the United States” on June 15, 2012 are eligible for deferred action under the terms of the new DHS policy. Presumably, an “honorably discharged veteran” would be anyone who served honorably–including veterans who have honorable discharges, entry-level discharges characterized as honorable,  or general discharges under honorable conditions. Because most honorably discharged veterans who are not above age 30 and meet the Memorandum’s other requirements are eligible for naturalization under Immigration and Nationality Act § 329, however, few will likely need deferred action through the plan announced by Secretary Napolitano. Any honorably discharged veteran who has questions about his or her eligibility for naturalization should see a competent immigration attorney for details about the military naturalization process.

 

Enforcement of immigration sanctions against U.S. employers has resurfaced in Congress and has again become a lightning rod issue, in the Pacific Northwest and nationwide. 

The Legal Workforce Act, sponsored by Representative Lamar Smith (R-TX), was marked up by the House Judiciary Committee in September 2011, and could face a floor vote soon in the House.  The bill would mandate participation by all U.S. employers in the E-Verify program, a system designed to check the employment authorization status of employees. 

The proposal to make E-Verify mandatory now, in the midst of hard economic times, has garnered varied and divisive reaction.  The Seattle Times published an article regarding reactions of local small businesses and State government officials to making E-Verify mandatory.  Supporters of E-Verify say the system is easy to use and can potentially free up jobs for unemployed American workers.

Opponents of mandatory E-Verify say it hurts more than it helps.  Washington Governor Chris Gregoire and local farm-group representatives recently visited DC to lobby against the Legal Workforce Act, emphasizing the negative effect of mandatory immigration verification on the farm labor workforce in Washington State.  If Washington farm workers (most of whom are estimated to be undocumented) did not pass mandatory E-Verify screening, agricultural employers would be forced to either lay off a large part of their workforce and leave their crops unharvested, or keep their workers for harvest but expose their companies to significant fines and other liabilities.  Employers also have the option of trying to use the complicated H-2A visa program for seasonal agricultural workers, but even the House Committee on the Judiciary has acknowledged that this system is burdensome and may not meet employers’ needs. 

Given current trends, it could be only a matter of time before U.S. employers, large and small, agricultural and non-agricultural, would be required to use E-Verify or a similar system to screen all new hires.  The concept behind E-Verify–providing U.S. employers an immigration verification tool synced with federal government databases–is not a new one.   In 1996, Congress mandated the development of a pilot program in Section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act; this program has evolved to become E-Verify.  The federal government has been encouraging U.S. companies to enroll in E-Verify, and has taken other actions to ramp up enforcement of immigration sanctions against employers.   In recent years, Social Security no-match letters and unprecedented increases in I-9 and other workplace audits by the Department of Homeland Security have affected many U.S. businesses.  Under the current administration, employers have been assessed record fines for immigration violations.

Does your business have a plan in case you are targeted for immigration enforcement or audits, or have you thought about how mandatory E-Verify could affect you?  Here are a few suggestions to get you started thinking about immigration compliance for your company.

On July 26, the House Judiciary Committee’s subcommittee on Immigration Policy and Enforcement held a hearing on the “HALT Act” (Hinder the Administration’s Legalization Temptation).  As I testified at the hearing, the HALT Act will stop USCIS from issuing “advance parole” to hundreds of thousands of people who have applied for adjustment of status and who seek to travel internationally while their adjustment applications are pending.  “Advance parole” is a type of travel permission that immigrants must get before they travel or the government will consider their application to be abandoned, and they will lose their filing fees and be stuck outside the United States for months or even years.  The inability to get “advance parole” will cause major disruptions to the lives of many law-abiding immigrants.  The HALT Act would prevent the Government from granting “humanitarian parole,” “deferred action,” and Temporary Protected Status (TPS) to deserving immigrants, and would cause the loss of those benefits to hundreds of thousands of people who have these benefits now.  The HALT Act would also hurt military families and prevent organ donors from coming to the US to donate organs to American citizens.   For more information on the HALT Act, go to the hearing website to read my testimony.