When Immigration Matters

Trump’s proposed changes to business visas may have significant negative implications for businesses trying to employ skilled immigrants.  The H-1B visa in the United States is a visa which allows U.S. employers to employ foreign workers in specialty occupations.  The regulations define a “specialty occupation” as requiring theoretical and practical knowledge in a field of human endeavor including, but not limited to: biotechnology, chemistry, computing, architecture, engineering, statistics, physical sciences, journalism, medicine and health, economics, education, research, law, accounting, business specialties, technical writing, theology and the arts, and requiring the attainment of at least a bachelor’s degree or its equivalent, and state licensure, if required to practice in that field.

On June 20, 2018, President Trump issued an executive order which, on its face, appeared to reunite immigrant children with their parents from whom they had been separated at the border.  In reality, the order created additional chaos and revealed the incompetence, disarray and lack of leadership of the current administration. The government was unable to meet the court-imposed July deadlines for reunification, and the court then granted an extension.  The Trump administration vowed to take all necessary efforts to reunify the families and indicated that it was fully committed to the process.  Two months have passed since Trump issued his executive order. The question remains, “How far have we come in reunifying those families?”

Recent policies issued by the United States Citizenship and Immigration Services (USCIS) have significantly impacted the ability of foreign students and exchange visitors to remain lawfully in the United States.  Most foreign nationals who are inspected and admitted to stay in the United States under nonimmigrant status are allowed to do so until a specific date.  Previously, academic exchange students and exchange visitors were an exception to this rule and were permitted to remain in the United States under a “duration of status” due to the difficulty in determining a precise end date for their course of study or project.   

Karen-Lee Pollak is being honored by the Texas Diversity Council with a “Dallas Top 50 Women Lawyers Award.” Award winners are chosen for their experience, leadership, and commitment to diversity. The National Diversity Council seeks to advance and support diversity within the legal field. An integral part of this effort is recognizing and honoring prominent leaders in the legal community that embody and champion diversity. 

On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum on Notices to Appear (Forms I-862, hereinafter “NTAs”).  The new NTA policy is intended to implement the Trump administration’s enforcement priorities as set forth in the January 17 Executive Order “Enhancing Public Safety in the Interior of the United States.”  The new policy not only has significant ramifications for foreign nationals but also gives the USCIS an abundance of unchecked authority.  From its inception, the USCIS was never intended to be an immigration enforcement agency.  That role was reserved for the ICE.  The sole function of the USCIS was to administer immigration benefits (i.e., processing applications for visas, green cards, naturalization and humanitarian benefits).  The Policy fundamentally shifts the way in which the USCIS operates.  As explained by Benjamin Johnson, the director of the American Immigration Lawyers Association, “The Homeland Security Act was designed to have three components:  service, enforcement and border control, each under a different agency, particularly so that the ‘service’ component was not overshadowed by the enforcement and border components.  The Trump Administration is re-writing the Homeland Security Act without Congressional action.” Historically, the Department of Homeland Security (DHS) has relied upon the enforcement components of DHS, specifically the Immigration Customs Enforcement (ICE), to handle NTA in the majority of circumstances. Under the new policy, USCIS will be able to issue an NTA on its own accord and place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the individual is deemed removable at the time of the denial. More significantly, NTAs will be issued to every person who is not “lawfully present” in the United States at the time that their application benefit request or petition is denied.  A second policy memorandum issued at the same time makes applicants for Deferred Action for Childhood Arrivals (DACA) the exception to this new NTA policy.

On June 20, 2018, President Trump issued an executive order which, on its face, appeared to reunite immigrant children with their parents from whom they had been separated at the border.  In reality, the executive order has created additional chaos and revealed the incompetence, disarray and lack of leadership in the current administration.  Initially, the administration indicated that it would reunite all children younger than 5 with their families by a July 10, 2018 deadline. Yet, just one day after that announcement, Health and Human Services Secretary Alex Azar notified the public that the administration would not meet that deadline and that it needed an extension. Sarah Fabian, an attorney for the Justice Department, explained that the administration does not know where over 20% of those young children are because their parents were released from ICE custody. In a status hearing with United States District Court Judge Dana Sabraw of the Southern District of California, government lawyers stated that they would only be able to reunify about half of the 100 children under the age of 5 by the court mandated deadline of July 10. The lawyers also admitted that they could not locate the parents of 38 migrant children under the age of 5.  The parents of 19 of the children  have been released from custody into the United States and their whereabouts are unknown.  The parents of the remaining 19 children have been deported. 

On June 24, 2018 the U.S. Supreme Court decided in Trump v. Hawaii to uphold a travel ban from seven predominantly Muslim countries:  North Korea, Syria, Iran, Yemen, Libya, Somalia and Venezuela. The 5-4 ruling by the Court is the first substantive decision on a Trump administrative policy and sends a strong message that Trump has expansive powers under immigration law to protect national borders.  Writing for the majority, Chief Justice Roberts stated that the president had ample statutory authority to make national security judgments in the realm of immigration. Roberts argued that the ban wasn’t anti-Muslim because it was “facially neutral” and that it was within the president’s legitimate exercise of his power to defend the United States through immigration courts.  “The sole prerequisite,” Roberts wrote, “is that the entry of covered aliens’ ‘would be detrimental to the interests of the United States.’  The president has undoubtedly fulfilled that requirement here.” Roberts explained that Trump had ordered an evaluation of every country’s compliance with the risk assessment and then issued his findings. “Based on that review, the president found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.”  Roberts argued that although the ban applies to five countries with Muslim majority populations, “that fact alone does not support an inference of religious hostility.” Those countries contained only 8% of the world’s Muslim population.

President Trump’s executive order on immigrant children seeks a balance between his “zero tolerance” policy for families crossing the border and ending the practice of separating children from their parents.   The June 20, 2018 executive order came after growing criticism of Trump’s “zero tolerance” policy, which calls for prosecution of all immigrants who come to the United States illegally. Trump’s policy required parents and children travelling together to be separated.  Parents were referred for prosecution and taken into federal custody.  Children were taken to the U.S. Health and Human Services Department, which placed them with sponsors (e.g., family members) or sent them to shelters or foster homes.  Under Trump’s executive order, parents will now be detained alongside their children.  Although Trump claims that the executive order adequately addresses the fervent public criticism about his immigration policy, the order raises new and unsolved issues.

The Trump administration recently reconfirmed its intent to rescind the H-4 visa rule on employment authorization to certain spouses of H-1B visa holders.  Under a rule introduced by the Obama administration in 2015, the spouses of H-1B holders who are waiting for green cards are eligible to work in the United States on H-4 dependent visas.   The H1-B visa is a non-immigrant visa that permits companies in the United States to employ foreign workers in its specialty occupations. The visas are valid for three years and can be renewed for another three years.  The program is popular in the tech community and has its greatest impact on foreigners from South Asia. 

On June 11, 2018, Attorney General Jeff Sessions ordered federal judges to stop granting asylum to the tens of thousands of applicants who claim to be fleeing their countries due to domestic abuse and gang violence. Sessions determined that refugee or asylum status should be limited only to those individuals who can establish that the persecution they are suffering in their country of origin is based on their membership in a “particular social group” with a “common immutable characteristic.”  Sessions asserted that, in the majority of cases, victims of domestic violence or gang related persecution did not constitute membership in such a group.