Visa Lawyer Blog

Articles Posted in Executive Actions

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In this blog post we cover where the top democratic presidential candidates stand on the issue of immigration. At the moment only three Republicans have announced their participation in the 2020 election, therefore we will focus on the democratic candidates until more Republican candidates have formally announced their presidential bids.

On the democratic front, over sixteen candidates have formally announced their participation in the 2020 Presidential election, with many more rumored to join their ranks in the coming months.

Over the last five months, presidential hopefuls, Former Vice President Joe Biden, U.S. Senator Bernie Sanders, U.S. Senator Kamala Harris, U.S. Senator Elizabeth Warren, and U.S. Senator Amy Klobuchar, have battled one another taking part in debates across the country. Not surprisingly, the topic of interest in these debates has turned to immigration.

Joe Biden

Joe Biden is a familiar face to all Americans, having served as former Vice President during the Obama administration for 8 years, but Joe Biden’s performances in the latest democratic debates have been lackluster at best.

In a recent debate moderators criticized Joe Biden for being part of an administration that was responsible for deported 3 million people, the most in United States history. When asked if he did anything to prevent the deportations, Biden deflected stating that his own power was limited and that the former President “did the best that was able to be done.”

Joe Biden has appeared weak on immigration. Although he has acknowledged that the American immigration system is broken, he has provided few solutions on how to unify Congress to pass comprehensive immigration reform. Joe Biden has also prioritized securing the South West border and publicly stated during debates that undocumented immigrants need to “get in line,” to obtain legalization like everyone else.  Like his predecessors Joe Biden’s immigration policy prioritizes the entry of highly skilled immigrant workers, and fails to offer solutions to the millions of undocumented immigrants living and working in the United States for decades.

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In its latest act of defiance against the judicial branch, the Trump administration has published an Interim Final Rule entitled “Visas: Ineligibility Based on Public Charge Grounds,” designed to give Consular officers wider discretion to deny immigrant and nonimmigrant visas to applicants on public charge grounds based on a variety of factors that could weigh positively or negatively on an applicant.

According to the rule, consular officials will now be able to weigh a variety of factors to determine whether a visa applicant is likely to become a public charge. These factors include the applicant’s age, health, educational background, and financial status. In addition, consular officers will have increased discretion to scrutinize certain applications more closely than others based on the type of visa classification sought by the applicant, as well as the duration of stay.

Applicants who are seeking a long-term visa, for example may be scrutinized more heavily than applicant’s seeking a short-term visa (such as a tourist visa).

How will these factors be weighed by Consular officials?

Age: Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and 62 as a positive factor.

Health: Consular officers will consider whether the alien’s health serves as a positive or negative factor in the totality of the circumstances, including whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work (if authorized).

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Today, November 30, 2018, the United States Department of Homeland Security announced a notice of proposed rulemaking (NPRM) that seeks to impose a registration requirement for H-1B petitioners seeking to file an H-1B petition on behalf of beneficiaries under the regular cap and advanced degree exemption.  An unpublished version of the proposed rule has been made available in the federal register.

Under the proposed rule H-1B Petitioners would be required to electronically register with USCIS during the designated registration period, in order to file a H-1B cap-subject petition on behalf of a foreign worker. In addition, DHS is proposing to change the order in which H-1B cap-subject registrations would be selected to meet the annual H-1B regular cap and advanced degree exemption. This change would increase the odds of selection for H-1B beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution.

Under the proposed rule, all petitioners seeking to file an H-1B cap-subject petition on behalf of a foreign worker would be required to submit to a mandatory registration process. Only those whose registrations are selected, would be eligible to file an H-1B cap-subject petition during the associated filing period.

The mandatory Internet-based registration process for petitioners seeking to file H-1B petitions for beneficiaries to be counted under the regular cap or advanced degree exemption, would begin before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. An H-1B cap-subject petition would not be considered properly filed unless the petition is based on a valid registration selection for that fiscal year.

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Several weeks ago, the President signed an executive order preventing undocumented immigrants from applying for asylum.

On Monday, a federal judge from San Francisco issued a nationwide injunction, forcing the government to continue to accept asylum claims by undocumented immigrants, regardless of where or how they entered the United States. As a result, the President’s executive order will be suspended until a decision is reached by the court in the lawsuit East Bay Sanctuary Covenant et al., v. Donald J. Trump, et al.,

The President hoped that his executive order would curb illegal immigration at the Southern border, ahead of the arrival of a large immigrant caravan from Central America.

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On November 9, 2018, the President unveiled a new executive order, this time targeting asylum seekers from Central America.

Over the last few weeks, a large caravan of immigrants from Central America, bound for the United States, has made headlines. In a recent campaign ad, the Trump administration depicted individuals forming part of the immigrant caravan as criminals and violent gang members.

The President has not shied away from commenting on the caravan. In an October tweet, when news first spread of the caravan, the President said, “In addition to stopping all payments to these countries, which seem to have almost no control over their population, I must, in the strongest of terms, ask Mexico to stop this onslaught—and if unable to do so I will call up the U.S. Military and CLOSE OUR SOUTHERN BORDER!”

Trump is now delivering on his promise. Trump has now signed an executive order to temporarily suspend the entry of certain aliens entering through the southern border.

The executive order reads:

Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.  In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens — and all others arriving at our ports of entry — as efficiently as possible.

But aliens who enter the United States unlawfully through the southern border …. will be ineligible to be granted asylum …. Those aliens may, however, still seek other forms of protection from persecution or torture.

Who does the Executive Order apply to:

Aliens who enter the United States across the international boundary between the United States and Mexico after November 9, 2018. The suspension will expire 90 days after November 9, 2018, or the date on which an agreement permits the United States to remove aliens to Mexico.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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The Washington Post recently reported that President Trump is expected to deliver a scathing speech on immigration this upcoming Tuesday October 30, 2018. The President’s speech will come just a week before the highly contested midterm elections, where more than 425 House seats are up for re-election.

Interestingly, the Post is reporting that President Trump is gearing up to invoke his executive power to prevent Central American migrants from applying for asylum at the Southwest border. Such a move would trigger constitutional challenges in federal court. However, as we know, the President and his administration have not shied away from controversy.

The President is eager to present his agenda to boost his approval ratings and encourage Republican voters to support GOP candidates in battleground states.

Earlier this month the President expressed his sentiments regarding an immigrant caravan consisting of more than 7,000 Central American migrants’ intent on reaching the U.S. border.

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order called for the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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We would like to remind our readers that beginning September 11, 2018, USCIS immigration officers will have the discretion to issue denials without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOIDs).

The new policy was announced in a policy memorandum released during the month of July.

On September 6, 2018, the CIS Ombudsman’s Office provided further details on the new policy:

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Photo by Molly Adams

On Friday August 31, 2018, Texas District Judge Andrew Hanen declined to issue a preliminary injunction that would have put a stop to the DACA program immediately. As we previously reported, the fate of the DACA program now rests in Judge Hanen’s hands, who is currently presiding over a lawsuit filed by the State of Texas along with seven other states (State of Texas, et al., v. the United States of America, et al.). At issue in that case is (1) whether the creation of DACA violated the Constitution (2) whether the DACA program violates the substantive and procedural requirements of the Administrative Procedure Act.

Texas, along with other states, are collectively asking the Court to provide declaratory and injunctive relief temporarily halting the DACA program, as well as a court ruling finding the DACA program unconstitutional. According to Texas, the DACA program is illegal because its creation violated the procedural and substantive aspects of the Administrative Procedure Act. In addition, Texas argues that the program violates the Take Care Clause of the U.S. Constitution.

On Friday, the judge issued a ruling on the States’ collective request for a preliminary injunction to temporarily stop the government from issuing or renewing DACA permits. In response to the States’ request for a preliminary injunction, Judge Hanen wrote a lengthy 117-page opinion drawing on the need to exercise judicial restraint with regard to DACA, “the failure of Congress to act [with regard to DACA] does not bestow legislative authority on either the Executive or Judicial branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States….”

Hanen sealed his opinion with a forceful statement regarding his sentiments toward DACA, “Unfortunately the Judiciary is not the branch of government designed to salvage a program that should have emanated from Congress, or at the very least complied with the APA…This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”

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