December 2017 Newsletter
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In This Issue
Supreme Court Stays Injunction of Travel Ban
On December 4, 2017, the U.S. Supreme Court lifted the restrictions that lower courts had imposed on implementing President Trump's latest travel ban. Arguments to whether the travel ban will stay will be conducted in the lower courts. The Order stayed the district court's preliminary injunction pending disposition of the government's appeal in the Fourth Circuit.
Federal Court Vacates Delay of International Entrepreneur Rule
On December 1, 2017, federal district Judge James E. Boasberg vacated the Trump administration's delay of an Obama-era rule that would have allowed certain foreign entrepreneurs to obtain immigration parole (to temporarily enter the United States despite lacking a visa or permanent residence). At the outset of the opinion, the court said, "Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act [APA] shapes the contours of those consequences."
The "International Entrepreneur Rule" was set to take effect July 17, 2017, but shortly beforehand, the Department of Homeland Security (DHS) issued the "Delay Rule," delaying the effective date of the original rule until March 14, 2018. The court noted that the agency did so without providing notice or soliciting comment from the public, which is generally required by the APA. The plaintiffs alleged that the agency lacked good cause to dispense with the APA's strictures and that the Delay Rule was therefore invalid, and the court agreed.
The court noted that the Obama-era DHS promulgated the International Entrepreneur Rule to encourage international entrepreneurs to create and develop start-up entities with high growth potential in the United States. DHS believed that attracting foreign entrepreneurs would "benefit the U.S. economy through increased business activity, innovation, and dynamism." Before issuance of the regulation, the court observed, foreign entrepreneurs "lacked a clear-cut avenue for entry into this country. ...The United States had no dedicated visa category for foreign entrepreneurs, and other visa options were frequently unavailable to that group." The executive branch, however, cannot unilaterally create a new visa category, the court noted, so it turned to a more temporary solution for these entrepreneurs: parole. This allows a foreign national to be physically present in the United States for a specific, temporary period, ranging from days to years. Parole does not constitute formal "admission" to the United States and gives the recipient no formal immigration status.
To be considered for a discretionary grant of parole for up to 30 months (with reapplication for up to an additional 30 months based on certain conditions) under the International Entrepreneur Rule, an entrepreneur would generally need to demonstrate the following:
The court noted that the agency "meaningfully" revised the final version in response to 763 comments received on the proposed rule. DHS changed the minimum investment amount, the definition of an entrepreneur, and the definition of a start-up entity.
Six days before the effective date of the rule, USCIS issued the superseding Delay Rule postponing the effective date by eight months, to March 14, 2018, but without offering the public advance notice or an opportunity to comment. Instead, it provided a short window for comments only after the Delay Rule took effect. Further, DHS indicated that it was "highly likely" to rescind the International Entrepreneur Rule. Its Delay Rule, therefore, appeared designed to ensure that the Obama-era rule would never take effect, the court noted.
The plaintiffs included two foreign nationals, two U.S. businesses, and the National Venture Capital Association, an organization of individuals who invest in businesses founded by foreign entrepreneurs. The plaintiffs all claimed that the Delay Rule seriously injured their businesses or investments. The Trump administration argued that the APA's "good cause" exception applied, which allows an agency to dispense with notice-and-comment when it "for good cause finds...that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." The court noted that because notice-and-comment is "the default," the onus is on the agency to establish that a notice-and-comment opportunity should not be given, and an agency "faces an uphill battle to meet that burden."
Among other things, the plaintiffs argued that through its own delay, the agency forfeited any "good cause" defense. Citing related decisions, the court noted that good cause cannot arise as a result of an agency's own delay; otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the even of a statutory, judicial, or administrative deadline, then raise up the "good cause" banner and promulgate rules without following APA procedures. In this case, the court said, the government's briefing never explained the time lag and "struggled" to explain what the agency did between learning of the executive order and issuing the Delay Rule. DHS primarily justified the Delay Rule by citing the expense of implementing the new parole system, among other arguments. The court said that the agency's proffered reasons for bypassing notice-and-comment were unpersuasive and "easily [fell] short of good cause." The court noted that the agency estimated it would process roughly 2,900 applications this year and receive $1,285 each in filing fees, generating more than $3.5 million, and that the asserted expense to the government without evidence was not sufficient to overcome the notice-and-comment requirement.
The court concluded, "If Defendants have additional reasons why a stay might be appropriate pending any appeal, they can so move. Until then, the Court believes that vacatur is the appropriate remedy."
Read the full text of the opinion, National Venture Capital Association, et al., v. Elaine Duke, et al., Civil Action No. 17-1912 (JEB).
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SSN Application Part of EAD Application
The USCIS and the Social Administration have worked together to consolidate the application process for certain foreign nationals to obtain both an employment authorization document (EAD) and a Social Security Number (SSN). The recently revised edition of Form I-765 is used for this purpose. Applicants should receive their Social Security cards approximately two weeks after receiving their EADs.
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USCIS Designates Adopted Decisions Defining Affected Parties, Functional Managers
U.S. Citizenship and Immigration Services (USCIS) has designated two Administrative Appeals Office (AAO) decisions as Adopted Decisions.
Matter of V-S-G Inc. (AAO Nov. 11, 2017), Adopted Decision 2017-06. This decision clarifies that beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers ("port") and who have properly requested to do so under INA § 204(j) are "affected parties" under Department of Homeland Security regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings.
The USCIS memorandum notes that other kinds of visa petition beneficiaries, and the subsequent employers of beneficiaries who have ported or sought to port, are not affected parties under DHS regulations and may not participate in visa revocation proceedings.
The AAO decision states that it "settles a tension between longstanding agency regulations and subsequent developments in the law regarding who is a cognizable party to a Form I-140, Immigrant Petition for Alien Worker." The decision notes that traditionally, the applicant or petitioner is the only recognized party to a proceeding; that is, the beneficiary of a petition generally does not have the ability to participate in the immigration proceeding initiated by the petitioner. The decision sets forth a scenario in which an I-140 beneficiary may become a recognized party in certain limited circumstances in light of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and one of its amendments. In so doing, the decision explains the current USCIS interpretation of applicable regulations to allow such a beneficiary to participate in relevant administrative proceedings.
The decision concludes:
Because we find that beneficiaries who are eligible to port and properly request to port under AC21 are within the statute's zone of interests, USCIS interprets that statute as requiring a change in the agency's historical interpretation of the applicable DHS regulations. Our new interpretation is to treat these beneficiaries as affected parties who may participate in revocation proceedings related to their underlying immigrant visa petitions. Because the Beneficiary in this case, who is eligible to port and properly requested to port in compliance with the requirements under AC21, did not have an opportunity to so participate, we will reopen these proceedings and reinstate the Form I-140 immigrant visa petition relating to the Beneficiary and remand these proceedings to the Director, who must afford the Beneficiary an opportunity to respond to any future [Notice of Intent to Revoke] related to this I-140 petition. Should the Director thereafter revoke the immigrant petition's approval, the Beneficiary may appeal or file a motion to reopen or reconsider from the revocation or he may participate in proceedings arising from an appeal or motion filed by the Petitioner relating to this petition.
Matter of G- Inc. (AAO Nov. 8, 2017), Adopted Decision 2017-05. This decision provides important guidance to U.S. employers who transfer "function managers" (those who primarily manage essential functions rather than people) under the L-1 intracompany visa. A USCIS memorandum explaining the adoption of this decision notes:
Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a "function manager," the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is "essential," i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function's day-to-day operations.
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Federal Court Blocks Trump Order to Strip 'Sanctuary Jurisdictions' of Federal Funding
Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration's executive order issued in January 2017 to block federal funds from "sanctuary jurisdictions."
The January executive order stated, "Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic." The executive order said, among other things, that the policy of the executive branch is to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take "appropriate enforcement action" against any entity that "has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law."
The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment's prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment's Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.
The federal government responded that the counties could not demonstrate that the executive order's sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution's separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.
The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General "erased it with their public comments." The court noted that the President has called the order "a weapon" to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that "counties and other institutions that remain sanctuary cites don't get federal government funding in compliance with the executive order." The Attorney General has warned that jurisdictions that do not comply would suffer "withholding grants, termination of grants, and disbarment or ineligibility for future grants," and the "claw back" of any funds previously awarded, the court noted.
The court said that the Constitution vests spending powers in Congress, not the President, so the executive order "cannot constitutionally place new conditions on federal funds." Further, the court noted, the Tenth Amendment "requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive." Federal funding that bears no meaningful relationship to immigration enforcement "cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves," the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties' motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.
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U.S. Resumes Limited Visa Operations in Turkey
The U.S. Mission in Turkey announced on November 6, 2017, that embassies and consulates resumed "limited visa services" in Turkey.
The U.S. Mission noted that "[w]e continue to have serious concerns about the existing cases against arrested local employees of our Mission in Turkey. We are also concerned about the cases against U.S. citizens who have been arrested under the state of emergency. U.S. officials will continue to engage with their Turkish counterparts to seek a satisfactory resolution of these cases."
The U.S. Mission also said, however, that it had received "initial high-level assurances" that no additional local employees of the U.S. Mission in Turkey are under investigation. "We have also received initial assurances from the Government of Turkey that our local staff will not be detained or arrested for performing their official duties and that Turkish authorities will inform the U.S. government in advance if the Government of Turkey intends to detain or arrest a member of our local staff in the future."
The U.S. Mission also said that Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens "are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey."
As background, on October 8, 2017, the U.S. Department of State announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas included business, tourist, student, and temporary work authorization visas. The suspension also applied to diplomatic and official visas.
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USCIS Warns About Scams Requesting I-9 Forms via Email
U.S. Citizenship and Immigration Services (USCIS) recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.
USCIS said that the scam emails have been coming from a fraudulent email address: email@example.com. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address, and a fraudulent download link to a non-government web address (uscis-online.org). "Do not respond to these emails or click the links in them," USCIS warned.
Click here to report a scam email requesting I-9 information from USCIS to the Federal Trade Commission.
If you are unsure, click here to forward the suspicious email to the USCIS webmaster. USCIS "will review the emails received and share with law enforcement agencies as appropriate."
Read about USCIS scam alerts and related resources.
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New Publications and Items of Interest
The Immigrant and Employee Rights (IER) Section of the Department of Justice's Civil Rights Division has published a 30th anniversary commemorative newsletter, which features articles on noteworthy recent cases, initiatives and partnerships, IER investigations and enforcement activities, and reflections from a former intern.
IER also released a video on recent changes to the IER's regulations and what these changes mean for the public. The video also discusses resources on IER's work and the law it enforces. The video is available in English and in Spanish.
Advisories and tips:
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Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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Hodkinson Law Group News
As the temperature falls and our winter gear is in full use, we want to take this time to wish our clients, friends and colleagues a safe and joyous holiday season. We hope you enjoy a well-earned break and return to work in January rested, refreshed and ready for a wonderful 2018.