Tills Visa Law

Buffalo Immigration Law, Stephen K. Tills, Attorney at LAW

New Biden ICE Enforcement Memo

The Biden administration has issued a 2nd enforcement Memo that outlines the enforcement priorities for the U.S. Immigration and Customs Enforcement (ICE). This memo is known as the “Johnson Memo” and supercedes the prior memo that was subjected to an injunction in a Texas Federal Court in January, 2021.

The Memo Provides For 3 Categories Of Enforcement Priorities:
  • Non-citizens who have recently arrived at the U.S. Border
  • Non-citizens who have committed and been convicted of an “Aggravated Felony” conviction.
  • Non-citizens who are deemed a threat to National Security

According to the memo, ICE Field Officers should prioritize people who fall within these categories for enforcement of the Immigration Removal procedures, and do not need to request approval from ICE District Directors. Aggravated Felony offenses are the most serious Felony offenses such as drug trafficking, armed robbery, rape, and murder.

For those non-citizens falling outside the enforcement priorities, the memo requires prior approval from an ICE District Director before enforcement action is taken.

The Memo states that for those not deemed priorities, ICE officers should exercise discretion in deciding whether to serve the ICE detainer and to initiate removal procedures. In making the individual determinations, ICE officers have been provided the following guidelines:

Requests For Pre-Approval For Non Priority Cases Take Into Consideration:
  • The nature and recency of the noncitizen’s convictions;
  • The type and length of sentences imposed; and
  • Whether the enforcement action is otherwise an appropriate use of ICE’s limited resources, and other relevant factors.

President Joe Biden

Texas District Court halts Biden moratorium on deportations Jan 22, 2021.

As was often the case when the Trump administration tried Executive action to change Immigration law, a Texas Federal Judge blocked temporarily Biden’s 90 day pause on deportations. The Judge found that the near complete stop to the removal process was arbitrary and capricious, a disproportionate action for the purported goal of review by DHS, CBP of their border policies.

Detainees A Cuban migrant family is detained by National Guard soldiers along the Rio Grande in Ciudad Juarez, Mexico, on Feb. 16. (AP Photo/Christian Chavez)

Only the highest wage-paying Employers will be receiving H1-B visa workers under new Trump policy

Under the proposed policy announced by the Trump administration this week, U.S. CIS will be accepting visa petitions for H1-B workers submitted by Employers that promise the highest wage / salary level. This will replace a system based on a random lottery selection, with only the required minimum wage level set by the Labor Department. H1-B visas are for Specialty occupations that require the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.

For the past decade or so the number of visa applications for Employers in the H1-B category has far exceeded the number of visas available, 65,000. Due to the excessive demand, CIS implemented a lottery system, so that each application has the same chance at receiving a visa. The new policy will now prioritize the visa applications submitted by Employers who promise to pay the highest wages in each occupation.

The policy intends to ensure that in certain fields which are filled by the most H1-B visa holders, the wage / salary level will not be depressed by non-immigrant workers. The Notice of Proposed Rule Making will be published in the Federal Register on 11/2/20, with comments due 30 days after publication.

Work Visa Suspension Extended to Non-Immigrant Workers

President Trump Ordered a suspension on entry of certain Non-Immigrant work visas through December, 2020.  Visas effected by the decision are the H-2B, temporary, Non-agricultural seasonal workers,  H-1B temporary specialty workers, L-1 intracompany transferees, and J-1  Visas.  The effective date of the Order is June 24, 2020. This Order also extends the April 22nd Order suspending Immigrant work visas.

H-2B non-agricultural workers are most often employed in property maintenance such as landscaping, roofing, construction, and in hospitality. (H-2B agricultural workers are not effected by the Order)

H-1B Visas are issued to College / Advanced degree workers often hired to fill positions in IT, as well as Engineers, Architects, Accountants, and other professions.  The H-4 visas for accompanying family members have also been suspended.

FILE PHOTO: U.S. President Donald Trump stops to talk to reporters as he walks to the Marine One helicopter while heading out on a day trip to Arizona and a visit to the U.S.-Mexico border, departing from the South Lawn of the White House in Washington, U.S., June 23, 2020. REUTERS/Tom Brenner

J visas are usually issued to younger workers  who are invited to participate as an intern, trainee, teacher, camp counselor, au pair, or summer work travel program.

L-1 Visas enable multinational companies to send executives, managers and specialized knowledge employees to work temporarily at their office or affiliate in the U.S.. 

 

EXEMPT FROM THE ORDER ARE

• lawful permanent residents;
• spouse or child of a U.S. citizen;
• any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
• any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

 

Supreme Court protects DACA recipients

Chief Judge John Roberts

President Donald Trump greets Chief Justice John Roberts on Capitol Hill

The Chief Judge authored the 5-4 Majority opinion, finding that the Trump administration violated the Administrative Procedure Act (APA) in the manner in which they attempted to end the DACA policy.  Judge Roberts wrote early in the decision that although the initial DACA could have been deemed an illegal action taken by the Executive branch during the Obama Administration, the DHS Secretary’s attempt to end the program under the Trump Administration was done in an “Arbitrary and Capricious” manner.  The case came to the Supreme Court following decisions in the Federal Circuit Courts of Appeals for the 2nd Circuit (NY), 9th Circuit (California) and the D.C. Circuit, in which those Courts held that Trump’s DHS Secretary failed to adequately justify the decision to end the program.  The Majority found that the DACA program created Reliance issues for DACA recipients that went unacknowledged by DHS in ending the program.  “DHS may deter-mine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.”

Justice Brett Kavanaugh and Clarence Thomas

Justices Thomas and Kavanaugh issued dissenting opinions in which they questioned the very role of the Judicial Branch to intervene in an Executive Agency’s policy determinations, and this policy in particular.   “DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its re-scission.    No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio”.

Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals (DACA)

The DACA program continues for current recipients, and DHS will have to decide whether to continue granting benefits or issue a new policy to rescind the program.  Judge Kavanaugh wrote that it was better for the Congress to act on the issue. “In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants . . “.

 

 

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Real ID delayed until 10/21

HOMELAND-SECURITY

Department of Homeland Security (DHS)

DHS has issued a final rule delaying the date for card-based enforcement of the REAL ID Act regulations from 10/1/20 to 10/1/21. Beginning on 10/1/21, federal agencies may not accept a state-issued driver’s license or identification card for official purposes from any individual unless such license or card is a REAL ID compliant driver’s license or identification card.

Trump’s Order to Pause Immigrant Visas

The new E.O. issued on April 22nd places a 60 day pause on certain Immigrant visas.  The Order applies to categories of Employment-Based Immigrant Visas (Green Cards).

President Trump Announcing The 60 Day Temporary Suspension On Immigration

What Visa categories are exempt from the Order:

Non-Immigrant Visas:

NIV’s can continue for Employees, Investors, Tourists, Farm workers, etc..

Non-Immigrant Visa

Immigrant Visas:

HEALTH CARE PROFESSIONALS:

Doctors, Nurses, Research specialists and their family members are permitted to receive Immigrant Visas.

INVESTORS:

The only category of Employment-based visas to survive the E.O. is the EB-5 category, which applies to International investors who pledge atleast 1 million in investment in a venture that will create “substantial employment” in the U.S..

FAMILY – IMMEDIATE RELATIVES:

The E.O.  does not effect the ability of spouses or minor children of U.S. citizens to process their Immigrant visas, whether through Consular processing or by adjustment of status, for those present in the U.S..

-However,  Immigrant visas are currently effected by numerous consular post closures due to the Pandemic.

ASYLEES AND REFUGEES:

These categories are unaffected by the E.O., but in fact are substantially reduced in the current administration, and by consular closures.

EMPLOYMENT BASED VISAS WHICH WERE ISSUED BY THE E.O.’S EFFECTIVE DATE.

Workers that fall under the other Employment based visa categories, EB-1, 2, 3, and 4, will be issued Immigrant visas if the applications were approved on the effective date, 4/23/20.

 

 

U.S. DOS Reduces Visa Appointments At Consular Posts

Those waiting for visa interviews to obtain their non-immigrant or immigrant visas to the U.S. will find their appointments have likely been delayed due to safety precautions by Consulate offices abroad.  In their announcement, DOS included the webpage address for the offices most effected:

 

In an attempt to keep stakeholders apprised, the Department of State (DOS) has compiled a list of embassy websites for country-specific information concerning COVID-19. This page provides links to the COVID-19 dedicated page for each nation’s embassy which includes information concerning health services, recommendations, and in some cases, information concerning a reduction or temporary suspension of visa services.

Mike Pompeo U.S. Secretary of State is the President’s chief foreign affairs adviser.

 

Travel Warning for Visitors

U.S. CUSTOMS AND BORDER PROTECTION

Effective at 11:59 p.m. eastern daylight time on March 13, 2020, the entry into the United States is suspended for most individuals, other than United States citizens and lawful permanent residents, who have been physically present within a Schengen Area (Europe) country within 14 days of travel to the United States. Any traveler with a valid ESTA who is subject to the Proclamation and who attempts to travel the United States in violation of the Proclamation will have their ESTA canceled. ESTA will not refund applications that are canceled due to this Proclamation.

Border Crossing Guidelines for United States Entry

New ICE enforcement policy- COVID19

On March 19, 2020, ICE announced a pause in removal procedures due to the virus pandemic.  ICE will focus its detention and removal operations towards persons with serious criminal backgrounds and those deemed a danger to society.  Those in custody who have removal orders or are in pending removal proceedings can seek to be released from DHS custody on bond or under ICE parole.

See ice.gov – FAQ:

          Has ICE modified enforcement efforts during COVID-19?

To ensure the welfare and safety of the general public as well as officers and agents in light of the ongoing COVID-19 pandemic response, U.S. Immigration and Customs Enforcement (ICE) will temporarily adjust its enforcement posture beginning today, March 18, 2020. ICE’s highest priorities are to promote life-saving and public safety activities.

ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.

Homeland Security Investigations will continue to carry out mission critical criminal investigations and enforcement operations as determined necessary to maintain public safety and national security. Examples include investigations into child exploitation, gangs, narcotics trafficking, human trafficking, human smuggling, and continued participation on the Joint Terrorism Task Force. This work will be conducted based on ability to coordinate and work with prosecutors from the Department of Justice and intake at both the U.S. Marshals Service and Bureau of Prisons.

Consistent with its sensitive locations policy, during the COVID-19 crisis, ICE will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances. Individuals should not avoid seeking medical care because they fear civil immigration enforcement.

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