Visa Lawyer BlogArticles Posted in Executive Actions
How to Protect Yourself as an Undocumented Immigrant living under President Trump
In the United States and across the world, a climate of fear and uncertainty has taken over our day to day lives and crept its way into the politics of the country. This climate of fear has in many ways taken shape because of our President’s harsh anti-immigrant rhetoric, the series of executive orders he has signed on immigration which aim to discourage American companies from hiring foreign nationals, and which ultimately aim to deter undocumented immigrants from attempting to cross the United States border illegally. While the United States has an interest in buying American and hiring American, the President’s stance on immigration has made the best and brightest look elsewhere for the “American Dream.” Another cause for concern is the highly publicized immigration raids taking place across the country against undocumented immigrants. What is perhaps the most unsettling for undocumented immigrants is what is yet to unfold under the Trump administration. In recent weeks, we have seen the President harden his stance on immigration for both undocumented immigrants and foreign entrepreneurs with his plan to dissolve the “International Entrepreneur Rule” and his plan to build a “wall” along the Southern border.
For undocumented immigrants who have lived in the United States for more than 20 years, and who have raised their children as U.S. Citizens, there is much at stake. Living in this climate of fear has become our “new normal.”
The reality is that many families across the country are scared to remain in the United States. Some of these families have willingly returned to their countries of origin or relocated their families to other countries altogether. Still others, are being torn apart. Gone are the days when Dreamers were not made priorities for removal.
If you came to the United States illegally or no longer have a valid status country because you overstayed your visa, or just simply don’t have a status anymore, it is very important for you to take steps to protect yourself, and to realize that you have rights in this country.
This week in Immigration: Enforcement of Trump’s Executive Orders on Immigration
ICE Memo Discusses Immigration Enforcement of EOs 13767 and 13768
In a new memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Policies,” U.S. Immigration and Customs Enforcement (ICE), outlines the President’s policies going forward in implementing Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” and Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” signed by the President on January 25, 2017.
The memorandum makes clear that enforcement and removal operations will be taken immediately against all removable aliens, prioritizing expedited removal of aliens with criminal history or prior immigration violations such as fraud or material misrepresentation. Accordingly, the Department of Homeland security “will no longer exempt classes or categories of removable aliens from potential enforcement” under EO 13767 and 13768.
Under these directives, officers will prioritize efforts to remove individuals who:
- Have been convicted of any criminal offense;
- Have been charged with any criminal offense that has not been resolved;
- Have committed acts which constitute a chargeable criminal offense;
- Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
- Have abused any program related to receipt of public benefits;
- Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
- In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
EO Update: 90-Day Travel Ban Begins at 8:00 PM EST
As previously reported, the U.S. Supreme Court recently announced that the court will be hearing arguments in defense of and in opposition to the President’s controversial executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” also known as the “travel ban” in October of this year.
In the meantime, the Supreme Court has allowed some parts of the President’s executive order to take effect until it makes a final ruling later this year. This means that certain foreign nationals will be prevented from gaining admission to the United States. Today, the Department of State announced that per the Supreme Court’s instructions, the President’s 90-day temporary suspension will be implemented worldwide at 8:00 PM (EST) beginning today, June 29, 2017.
Who will be affected?
Foreign nationals from the six countries of concern mentioned in the President’s executive order, including Syria, Sudan, Somalia, Iran, Libya, and Yemen, who do not have a bona fide relationship with a person, entity (such as a religious or academic institution), or employer in the United States, will not be granted admission to the United States for a period of 90 days, beginning, June 29, 2017 8:00 PM EST, unless the foreign national can demonstrate that they have a credible qualifying bona fide relationship with a person, employer, or entity in the United States. Such individuals may qualify for a case-by-case waiver.
In addition, refugees will not be admitted to the United States for a period of 90 days, beginning June 29, 2017 8:00 PM EST, unless they can demonstrate a legitimate claim of “concrete hardship,” to be weighed against the country’s concern for its national security.
SCOTUS Allows Parts of Travel Ban to Take Effect and Agrees to Hear Travel Ban Case
On Monday morning, the United States Supreme Court announced that it will hear arguments for and against the President’s controversial executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “travel ban,”when it reconvenes in October of this year. The President’s executive order seeks to block the admission of foreign nationals from 6 predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) for a period of 90 days, and suspend the admission of refugees for a period of 120 days.
This announcement sets in motion the end of a long legal battle challenging the scope of the President’s executive power on immigration. This Fall, the Court will be tasked with determining whether the ban violates the establishment clause of the U.S. Constitution, as well as key provisions of the Immigration and Nationality Act, signed into law by Congress.
In the meantime, the Supreme Court has announced, in their per curiam opinion, that a limited version of the President’s executive order will remain in effect, until the Court makes its final ruling. In their opinion, the Court ruled that foreigners who have no ties or relationships in the United States may be prohibited from entering the country. This would include individuals applying for visas who have never been to the United States, or have no family, business, or other ties.
Ninth Circuit Court Rejects the President’s Travel Ban
The United States Court of Appeals for the Ninth Circuit has dealt yet another blow to President Donald Trump’s embattled executive order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” an order which temporarily prevented the admission of foreign nationals from six predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) and the admission of all refugees. As previously reported, the case reached the Ninth Circuit Court of Appeals, where a three-judge panel heard arguments against the President’s travel ban, brought by the state of Hawaii as well as other individual Plaintiffs.
Together, Judge Hawkins, Gould, and Paez, grilled the U.S. Solicitor General, Jeffrey Wall, representing the U.S. government, and attorney Neal Katyal, representing the state of Hawaii, concerning the constitutionality of the President’s executive order. Like the Fourth Circuit Court of Appeals, the Ninth Circuit Court once against decided against the President’s executive order, albeit for different reasons. The Ninth Circuit Court’s ruling against the travel ban is the latest in a string of court rulings rejecting the President’s executive order on statutory grounds.
In their 86-page opinion, the Ninth Circuit Court of Appeals rejected the executive order on statutory grounds, stating that the President had exceeded his executive power and made an inadequate judgment call with the issuance of his executive order. “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,” stated the Court, referring to the nation’s system of checks and balances. The Court added “we conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The Court further stated that the President’s executive order is at odds with various provisions of the Immigration and Nationality Act established by Congress, including a provision that prohibits nationality-based discrimination and a provision that requires the President to follow specific protocol when setting the annual cap on admission for refugees. The lower’s courts injunction on the travel ban will remain in place until a decision is issued by the U.S. Supreme Court.
Ninth Circuit Court Hears Oral Arguments Opposing the President’s Travel Ban
Today in a Seattle courtroom the Ninth Circuit Court of Appeals heard arguments on Trump’s revised travel ban. As you may recall President Trump issued a revised executive order in March to salvage his embattled travel ban, barring the entry of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period and refugees for 120 days. For over an hour, a three-judge panel listened to arguments from the U.S. Solicitor General Jeffrey Wall arguing on behalf of the Trump administration and Neal Katyal, an attorney representing the state of Hawaii and individuals challenging the President’s revised travel ban. The three-judge panel included Judge Ronald Gould, a moderate judge from Seattle, Washington, Judge Michael Hawkins, a moderate to liberal judge from Phoenix, Arizona, and Judge Richard Paez a liberal judge from Pasadena, California. The central question before the court was whether the President’s revised travel ban amounts to a violation of the U.S. Constitution based on religious discrimination.
The mood in the courtroom was contentious. Judges probed the Solicitor General to determine whether the President’s revised travel ban was specifically aimed at Muslims. The Solicitor General argued that the executive order was neutrally worded and that there were no indications in the language of the President’s executive order to indicate that there was any intent to discriminate the Muslim population. In a heated exchange, liberal Judge Richard Paez countered that even if the President’s executive order was “neutrally worded,” taking a seemingly “neutral” stance does not mean an executive order is devoid of discriminatory intent. Judge Paez noted that the executive order that interned Japanese Americans during World War II was also neutrally worded given that there was no reference to Japanese people specifically, but that the President at the time did intend to discriminate that particular demographic. During oral argument, Judge Paez commented on remarks made by the President during his campaign which have indicated his intent to target Muslims specifically with his executive order. Paez stated that Trump made references to a Muslim ban “in the midst of a highly contentious campaign” raising questions about whether the court should consider taking that into account.
Federal Judge from Hawaii Issues a Preliminary Injunction Blocking the President’s Travel Ban Indefinitely
Today, March 30, 2017, a federal judge from the state of Hawaii extended a court order blocking the President’s new travel ban from being enforced. In a 24-page decision, Judge Derrick Watson of Hawaii issued a preliminary injunction bringing the President’s executive order to a screeching halt indefinitely. Judge Watson first gained national attention two weeks ago, following his issuance of a temporary restraining order or TRO, which prevented the federal government from enforcing all provisions of the travel ban for a 14-day period. Watson’s TRO was meant to provide temporary relief pending further litigation. The state of Hawaii asked the judge to convert the TRO into a longer-lasting form of relief known as a preliminary injunction, at least until a higher court could issue a permanent ruling. The President’s embattled executive order sought to prevent the admission of foreign nationals from 6 Muslim majority countries including Syria, Somalia, Sudan, Iran, Libya and Yemen, for a 90-day period as well as the admission of Syrian refugees for a 120-day period.
In his decision Judge Watson wrote that he based his grant of the preliminary injunction on the strong likelihood that the state of Hawaii would succeed in proving that the travel ban violated the establishment clause of the U.S. Constitution which protects freedom of religion. In addition, the state of Hawaii successfully argued that absent the provisional relief, citizens of the state would be irreparably harmed. Attorneys for the state added that the state’s national economy would suffer in the absence of relief, and that its state universities would also be harmed by the President’s executive order in both the state’s ability to retain and recruit foreign born students and faculty.
Recap: What’s new in immigration
In this series, our office brings you up to speed on all things immigration.
Reminders for H-1B applicants for Fiscal Year 2018
Beginning April 3, 2017 USCIS will begin to accept cap-subject H-1B petitions for fiscal year 2018. USCIS has recently announced that premium processing has been temporarily suspended beginning April 3, for a 6-month period, that means that petitioners CANNOT file Form I-907 request for premium processing while premium processing has been suspended. As a reminder, for the general cap (U.S. bachelor’s degree holders or the foreign equivalent) only 65,000 H-1B visas are available per fiscal year, while 20,000 H-1B visas have been allocated for the advanced degree exemption (U.S. Master’s degree holders or higher level of education). Our office has estimated that this H-1B season, advanced degree holders will have a 65 to 70% chance of being selected in the lottery, while individuals qualifying for the general U.S. bachelor’s cap will have a 35 to 40% chance of selection.
For more information about the H-1B visa please click here.
I-130 Consular Processing
If you have applied for an immigrant visa with the National Visa Center, a process that is also known as consular processing, and you are preparing your civil documents for shipment to the National Visa Center or for your immigrant visa interview, please be aware that the Department of State has recently made changes to the Country Reciprocity tables, requiring new or additional documents for certain foreign nationals depending on their country of nationality. All original civil documents must be presented at the immigrant visa interview by the intended beneficiary.
To view the updates please click here.
To review the complete Visa Reciprocity Table, please click here.
What is happening with Trump’s Muslim Travel Ban and what is a Temporary Restraining Order?
Trump’s revised executive order banning the admission of foreign nationals from 6 Muslim-majority countries (Syria, Somalia, Sudan, Libya, Iran, and Yemen) and the admission of refugees is currently on hold. A federal judge from the state of Hawaii has issued what is known as a TRO or Temporary Restraining Order.
What is a TRO?
A TRO is a provisional form of relief granted by the federal courts that prevents a party from doing a certain thing so that the moving party does not suffer harm. The relief provided by a TRO is immediate, because the order is only granted under emergency circumstances. A TRO goes into effect for 14 days and can be extended for another 14 days (maximum 28 days). A TRO is not permanent.
President Trump’s New Travel Ban Strikes Out Once Again in Federal Court
On Wednesday March 15, 2017, a federal judge from the state of Hawaii issued a Temporary Restraining Order in opposition of President Donald Trump’s new executive order “Protecting the Nation from Foreign Terrorist Entry into the United States” which was set to go into effect today Thursday, March 16, 2017. This will be the second time the President’s executive order has been blocked by a federal court. Among its major provisions the new executive order which was set to go into effect today, called for a 90-day travel ban on non-immigrants of six Muslim countries including Syria, Libya, Iran, Somalia, Sudan, and Yemen, and a 120-day travel ban on the admission of refugees into the United States. The executive order had been re-drafted by the Trump administration following the Ninth Circuit Court’s ruling invalidating all provisions of the executive order nationwide. To salvage the provisions of the executive order and make good on his campaign promise to eradicate terrorism, the President and his administration attempted to improve the order by removing controversial provisions within the order, affecting legal permanent residents, as well as non-immigrants with valid U.S. visas, otherwise authorized to gain admission to the United States. The order also removed Iraq as one of the countries affected by the order and removed a provision terminating the admission of Syrian refugees into the United States.
In what seems like déjà vu, the new executive order has once again been opposed first by a federal judge in Hawaii, and in a separate action by a federal judge from the state of Maryland who has blocked the 90-day travel ban from being implemented on citizens of the six Muslim majority countries nationwide. In their decisions, both judges mentioned President Trump’s statements during his presidential campaign which called into question the constitutionality of the executive order and its violation of the Establishment Clause. Specifically, President Trump has previously said that terrorism is linked to the Muslim religion, and his administration has identified the six Muslim countries outlined in the order as countries whose citizens have committed terrorist crimes in the United States. The Court has been concerned with the discriminatory effect of the executive order in targeting Muslims. The federal judge from the state of Hawaii noted that the state has “met their burden of establishing a strong likelihood of success on the merits of their Establishment clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.” For those reasons, the Court found that a Temporary Restraining Order blocking all provisions of the order was appropriate.