2017 Immigration Issues

On Monday, June 26th, the U.S. Supreme Court (SCOTUS) issued a mixed decision in the “Travel Ban” litigation, relating to Presidential Executive Order 13780 (“EO”). As explained in more detail below, the SCOTUS decision gave a partial victory to the respondents who had challenged the EO while at the same time upholding the travel ban and related provisions for certain foreign nationals who cannot demonstrate a sufficient nexus to a family member, employer, educational institution or other entity in the U.S.

The Supreme Court granted certiorari and consolidated the two federal court cases from the 9th Circuit Court of Appeals and the 4th Circuit Court of Appeals. It will hear arguments in the consolidated case in the Court’s October, 2017 term.

To read our full alert, click here.

The U.S. Supreme Court has ruled unanimously that naturalized American citizens cannot be stripped of citizenship if a lie or omission in the application process was irrelevant to the government’s decision to approve the naturalization application in the first place. The ruling in Maslenjak vs. U.S. will ultimately make it more difficult for the government to revoke citizenship, rejecting both the current and prior administrations’ position that all lies–even minor ones–can lead to loss of citizenship.

The case involved an ethnic Serb who lied about her husband’s military service during her refugee processing, obscuring his service in the Bosnian Serb Army. When later applying for naturalization, she falsely claimed that she had never given false or misleading information when seeking an immigration benefit. Divna Maslenjak arrived in the U.S. as a refugee in 2000 and became a citizen in 2007. In 2013, however, she admitted that her husband had indeed served in the Bosnian Serb Army, ultimately resulting in her conviction for making false statements on her application for naturalization, and eventually revocation of her U.S. citizenship for having been obtained “contrary to law.”

Maslenjak appealed, contending that, when the underlying offense in a citizenship revocation case is a false statement, the government must prove that the truth would have negatively influenced the original decision. The Sixth Circuit Court of Appeals disagreed, ruling that the government need not establish that Maslenjak’s misrepresentations were material to the original naturalization decision.

On June 22, the Supreme Court overturned the Sixth Circuit’s decision, focusing on the causal relationship between the violation and the acquisition of citizenship. The Court was particularly troubled that the government’s position results in a “mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other” and the uncertainty this mismatch imposes on naturalized U.S. citizens.

The case will now return to the lower courts. Maslenjak’s U.S. citizenship could remain revoked, but only if the lower court determines that her false statements were in fact material to the approval of her naturalization application.

This ruling significantly raises the bar for revocation of citizenship. Requiring the government to show that it would have denied a citizenship application had it known the truth will make it more difficult for citizenship to be revoked. Even if the naturalized citizen’s lie had a real potential to affect the naturalization decision, the government will have to demonstrate not only that the lie could have impacted the decision, but that it actually would have made a difference. By disallowing revocation based on factors that might not have resulted in denial in the first instance, the Court provides naturalized U.S. citizens much greater security in their new status.

On May 31st, U.S. Customs and Border Protection (CBP) announced that they have published a new update on the I-94 website. CBP will remind travelers via e-mail of their officially recorded departure date from the United States. Currently, CBP will send these reminders to eligible travelers on the visa waiver program. CBP expects to further update the I-94 website to incorporate similar alerts for additional non-immigrant travelers. If the traveler has overstayed the terms of their admission, the I-94 website will provide information regarding the next steps to take. To read our full alert, click here.

On May 24th, DHS Secretary John F. Kelly extended Temporary Protected Status (TPS) through January 22, 2018 for eligible nationals of Haiti and individuals without nationality who last habitually resided in Haiti. The Secretary concluded that although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted the initial TPS designation, conditions in Haiti supporting its designation continue to be met at this time. Haiti’s poor conditions have been further exacerbated by a cholera epidemic in October 2010 and Hurricane Matthew in October 2016. While the six-month extension is much needed, it is unlikely that the crises in Haiti that justified the continued designations will be resolved by January 2018. At least 60 days before January 22, 2018, Secretary Kelly will reevaluate the designation for Haiti and determine whether another extension of the current designation, a redesignation, or a termination is warranted. Typically, TPS is extended for 18 months at a time.

Current beneficiaries of Haiti’s TPS designation seeking to extend their TPS must re-register by July 24, 2017. TPS beneficiaries who re-register may request a new Employment Authorization Document (EAD). Those who re-register and request a new EAD during the 60-day re-registration period will receive an automatic extension of their expiring EAD for up to 180 days from the date their current EAD expires. Current EADs will not be automatically extended without a new EAD request. TPS beneficiaries are strongly encouraged to re-register and file their EAD applications as early as possible to avoid lapses in documentation of employment authorization.

Continue Reading TPS Extended for Haitians and Court of Appeals Upholds the Block of Second Travel Ban

On Wednesday, May 24, our very own Kevin McNamara, Jen Rubin, and Bill Coffman will lead a live seminar in our San Diego office designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals and provide guidance for compliance in an era of increased enforcement. Topics will include:

  • Worksite visit preparation, including recordkeeping requirements
  • New, highly-skilled worker regulations and how they help you and your employees
  • Immigration consequences of hiring, terminations, and mergers & acquisitions
  • I-9, E-Verify, and H-1B compliance

Similar seminars in Boston and New York received great reviews. Don’t miss out! For additional details and to register, click here or contact Cassie Bent at CMBent@mintz.com.

On May 3, 2017, USCIS announced that it has completed data entry of all H-1B cap-subject petitions selected in the FY2018 lottery. We continue to receive receipt notices for selected petitions. USCIS will now begin returning all H-1B cap-subject petitions that were not selected, together with their respective filing fees. USCIS has not provided a definite timeframe for returning these petitions, but has stated that it will issue an announcement once all the unselected petitions have been returned. To read our full alert, click here.

In another example of increased restriction on the rights of non-U.S. Citizens, on Thursday, April 27, the Department of Homeland Security (“DHS”) published a policy memorandum limiting the privacy rights of immigrants and foreign nationals under the Federal Privacy Act of 1974.  This new guidance was issued to bring DHS policy in line with President Trump’s January 25 executive order.

The Privacy Act was established to govern the collection, maintenance, use and dissemination of personally-identifiable information maintained by federal agencies.  The Privacy Act, with specific exceptions, prohibits disclosure of such records without the consent of the individual.  It also provides individuals a means to access and amend their records.

Previous DHS guidance stated that such personally-identifiable information would be treated the same, regardless of citizenship.  However, consistent with the January 25 executive order, the new guidance provides that immigrants and nonimmigrant foreign nationals may not utilize these provisions and may only access their information through a request made pursuant to the Freedom of Information Act (FOIA).  Additionally, they may not request amendments of their records.  Furthermore, in connection with the new guidance, DHS stated that it permits the sharing of such information about immigrants and nonimmigrant foreign nationals from agency records with federal, state and local law enforcement.

In response to the current Administration’s “citizen-centric” policies, we are seeing an increased interest in applications for naturalization by U.S. Lawful Permanent Residents.

Following our recent seminars on what to expect in the world of immigration law and compliance in 2017, we invite you to delve deeper into I-9 compliance, E-Verify compliance, and employment-based immigration compliance. During this three-part webinar series, we will aim to arm employers with best practices and tools regarding compliance in key areas of immigration law.

  • Part I: I-9 Compliance and Best Practices — Monday, May 8, 2017
  • Part II: E-Verify Compliance and Best Practices — Tuesday, May 30, 2017
  • Part III: Wages, Recordkeeping, and Job Changes – Compliance in Employment-Based Immigration — Thursday, June 22, 2017

Click here to register for ALL or ANY combination of these informative webinars today!

All individuals entering the U.S. at international ports of entry are inspected by US Customs & Border Protection (CBP).  This occurs at either the arrival airport in the U.S., Pre-Flight Inspection if flying from most Canadian airports, or border crossings into the U.S. from either Canada or Mexico.  This is an inspection to determine the individual’s eligibility to legally enter the U.S., as well as to confirm any necessary customs declarations or possession of contraband.

Because of the unique nature of the border or port of entry inspection and the concern over national security, U.S. law gives CBP officers wide latitude in how to conduct the inspection, including verbal questioning, inspection of luggage, and, lately, even inspection and retention of electronic devices. Usually, the inspection process is quick and painless. However, since the administration’s recent attempts to ban certain individuals from entering the country in the name of national security, CBP officers have reportedly been reaching beyond the normal procedures to search people’s phones and compel individuals to unlock their smartphone as a part of the search. Not only are border agents doing cursory searches, as in thumbing through an individual’s phone, but in some instances, they will dig deeper and download the contents of the device onto their own computer system and run forensic search algorithms to reveal all the data, including deleted files that have not yet been overwritten and metadata that the owner did not know was there. Case law for this kind of search is undeveloped, so an individual’s rights against this invasion of privacy are not clear until challenged in court.

Below are some FAQs to help you through this process if you face additional scrutiny.  These questions and responses have been formulated with the best information available, but you should know that in any given situation, CBP officers may expand the inspection process subjecting you or your possessions to additional scrutiny.

Continue Reading FAQs for Entering the U.S.—Entry Inspection and Electronic Devices

A new travel restriction went into effect at 3:00 am EST on Tuesday barring passengers on foreign airlines coming to the United States from carrying electronic devices larger than a cellphone. According to Department of Homeland Security, the restricted items that cannot be in carried-on luggage include laptop computers, travel printers, and electronic games bigger than a cellphone. These items can only be carried in checked baggage. To learn who is impacted and who is not impacted, continue reading!

Continue Reading US and UK Limit the Size of Electronic Devices in Carry-On Luggage in Airplanes Originating from Eight Muslim-Majority Countries