Senate Confirms Dan Coats as Fifth Director of National Intelligence

On March 15, 2017, the United States confirmed Dan Coats as the new Director of National Intelligence by a vote of 85-12.[1] The Director of National Intelligence is a cabinet-level official who directs and oversees the National Foreign Intelligence Program as the head of the Office of the Director of National Intelligence (ODNI).

Although the Director of National Intelligence is not an immigration position, intelligence considerations may affect immigration policy. For example, in his March 6 Executive Order 13780 titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States” [PDF version], President Donald Trump directed the Director of National Intelligence to work with other Executive Department heads to strengthen the vetting of aliens seeking immigration benefits [see blog].

Prior to becoming the fifth Director of National Intelligence, Coats was a United States Senator from Indiana from 1989 to 1999, and then again from 2011 to 2017. In between his Senate tenures, Coats served as the United States Ambassador to Germany under President George W. Bush from 2001 to 2005.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Lesniewski, Niels, “Former Senator Dan Coats Easily Confirmed as Intelligence Director,” rollcall.com, (Mar. 15, 2017)

USCIS to Begin Accepting CW1 Petitions Subject to the FY-2018 Cap on April 3, 2017

On March 9, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it would begin accepting CW1 petitions subject to the fiscal year (FY) 2018 cap on April 3, 2017 [link]. The CW1 category is for employers in the Commonwealth of the Northern Mariana Islands who are seeking to employ foreign workers who would be otherwise ineligible to work under the other nonimmigrant work visa categories. The USCIS noted that it has not yet set the CW1 cap for FY-2018. However, the CW1 cap for FY-2018 is required to be less than the FY-2017 cap, which is currently set at 12,998. For reference, CW1 cap for FY-2016 was set at 12,999 [link].

The USCIS explains that for the FY-2018 cap, a CW1 extension petition may request a start date for October 1, 2017, even if the CW1 worker’s current status will not expire by October 1, 2017. The USCIS encourages employers to file a CW1 petition up to 6 months in advance of the proposed employment start date, and “as early as possible within that timeframe.” The USCIS will reject any CW1 petitions that are filed more than 6 months in advance.

The USCIS reminds employers to submit all required documentation. This includes evidence that the employer posted a job vacancy announcement on the Department of Labor (DOL) website.

The USCIS also issued a remember that as of December 23, 2016, the new filing fee for a CW1 petition is $460 [see article]. Furthermore, a CW1 petitioning employer “must also pay the required education fee for each requested CW1 worker.” As of February 21, 2017, the current annual education funding fee per CW1 beneficiary is $150 [link]. Any Forms I-129CW, Petition for CNMI-Only Nonimmigrant Transitional Worker filed without the requisite fees will be rejected and returned.

Employers must submit the Form I-129CW that has an edition date of 12/23/16. The Form I-129CW and all other forms may be downloaded from the USCIS website.

Petitioners for CW1 workers should consult with an experienced immigration attorney for guidance throughout the filing process.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

President Trump to Nominate Noel J. Francisco for U.S. Solicitor General

On March 7, 2017, the White House announced that President Donald Trump will nominate Noel J. Francisco to be the next Solicitor General of the United States [link]. Francisco is currently the Acting Solicitor General.

The Solicitor General is an official of the United States Department of Justice who is responsible for representing the federal government before the Supreme Court of the United States. The Solicitor General is an important official in the immigration law context because he or she is tasked with representing the federal government’s position in immigration cases and in other cases that implicate immigration law.

The White House press release discusses Francisco’s stellar resume. After graduating with honors from the University of Chicago Law School, Francisco clerked for Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit. After that clerkship, he then clerked for Justice Antonin Scalia of the Supreme Court of the United States. During the George W. Bush Administration, Francisco served in various capacities in the Department of Justice. From 2001 to 2003, Francisco was the Associate Counsel to the President, and from 2003 to 2005, he served as Deputy Assistant Attorney General in the Office of Legal Counsel. Subsequent to his service in the Bush Administration, Francisco went into private practice and eventually argued numerous high profile cases before the Supreme Court. Most notably, Francisco argued the winning side of NLRB v. Noel Canning, 579 U.S. __, 189 (2014) [PDF version], wherein the Supreme Court issued a landmark decision curtailing the President’s recess appointment powers.

In an interesting note, Jonathan H. Adler notes on the Volokh Conspiracy blog hosted by The Washington Post that Francisco “has been critical of the Chevron doctrine” [PDF version].[1] Adler noted to testimony that Francisco gave before the Senate Judiciary Committee in 2011, when he suggested that Chevron has caused courts to become too deferential to agency interpretations of statutes. To learn more about the Chevron doctrine and the debate over whether it should continue in its current form, please see our post on an opinion offered by President Trump’s nominee for the Supreme Court, Judge Neil Gorsuch [see blog on Judge Gorsuch’s overall record], on the subject of Chevron [see blog on Judge Gorsuch’s opinion].

Noel Francisco’s resume suggests that he is well qualified to be the next Solicitor General. The Senate would be wise to confirm him to his new post expeditiously.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Adler, Jonathan H., “Trump finds his ’10th justice’ (and it’s not Miguel Estrada),” washingtonpost.com/news/volokh-conspiracy, (Mar. 8, 2017)

USCIS to Begin Issuing Redesigned Green Cards and EADs Beginning on May 1, 2017

INTRODUCTION

On April 19, 2017, the United States Citizenship and Immigration Services (USCIS) issued a news release titled “USCIS Will Issue Redesigned Green Cards and Employment Authorization Documents” [PDF version].

In the news release, the USCIS announced a redesign to the Form I-551, Permanent Resident Card (commonly known as the “Green Card”). The USCIS also announced that it will begin issuing a redesigned Employment Authorization Document (EAD). The redesigned Green Cards and EADs, which were created as part of the Next Generation Secure Identification Document Project, will be issued beginning on May 1, 2017.

The USCIS explained that the redesigns are part of the USCIS’s efforts to take “a proactive approach against the threat of document tampering and fraud.” Furthermore, it is part of an ongoing collaborative effort between the USCIS, the U.S. Customs and Border Protection (CBP), and the U.S. Immigration and Customs Enforcement (ICE) “to enhance document security and deter counterfeiting and fraud.”

In this article, we will explain the features of the redesigned Green Cards and EADs, and what their adoption will entail for permanent residents and EAD-holders going forward.

FEATURES OF THE REDESIGNED GREEN CARDS AND EADS

According to the USCIS news release, the new Green Cards and EADs will:

• Display the holder’s photos on both sides;
• Show a unique graphic and color palette;
• Have embedded holographic images; and
• No longer display the individual’s signature.

Regarding the “unique graphic and color palette,” the USCIS explained that Green Cards will have an image of the Statue of Liberty and a predominantly green palette, while EAD cards will have an image of a bald eagle and a predominately red palette.

Finally, Green Cards will no longer have an optical stripe on the back.

DETERMINING IF YOUR CARD IS STILL VALID

Despite the redesigned Green Cards and EADs taking effect on May 1, 2017, the USCIS cautioned that some Green Cards and EADs may display the existing design format. This is because the “USCIS will continue using existing card stock until current supplies are depleted.”

Both existing Green Cards and EADs and their redesigned versions will be valid until the expiration date shown on the card. In limited cases for Temporary Protected Status (TPS)-related EADs and in other designated categories, an EAD may be automatically extended beyond the expiration date indicated on the card. Whether an extension applies regarding a TPS-related EAD depends on the TPS category. For guidance on extensions in other cases, please see our article on the recent Amendments to the American Competitiveness in the 21st Century Act (AC21) regarding automatic EAD extensions [see article].

Both the current and redesigned versions of Green Cards and EADs are acceptable for all normal purposes, including for:

• Form I-9, Employment Eligibility Verification;
• E-Verify; and
• Systematic Alien Verification for Entitlements (SAVE).

The USCIS noted that some older Green Cards do not have expiration dates. These Green Cards remain valid. However, the USCIS advised individuals with older Green Cards that do not have expiration dates to consider applying for a replacement Green Card with an expiration date. The USCIS explained that the newer Green Cards are less susceptible to fraud or tampering if lost or stolen.

CONCLUSION

The USCIS’s redesigned Green Cards and EADs are intended to be less prone to document tampering or fraud than the current versions. It is important to note that the redesigned Green Cards and EADs do not render current versions invalid provided that they are unexpired (or in the case of certain EADs, automatically extended). If a Green Card-holder or EAD beneficiary has any questions regarding the validity of his or her Green Card or EAD, or his or her continuing eligibility for an immigration benefit, the individual may opt to consult with an experienced immigration attorney for further guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Provisions for Immigration Policy Changes in President Trump’s March 6 Travel Order

INTRODUCTION

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”) [PDF version]. This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017 [PDF version].

In this post, I will examine President Trump’s justification for the new Travel Order as stated in the text of the Order itself and, more generally, the provisions in the Travel Order for subsequent changes to the vetting of visa applicants and the immigration system. To this effect, and with an eye towards the implementation of the Travel Order going forward, I will also examine a March 6 Memorandum issued by President Trump to the Secretary of State, the Attorney General, and the Secretary of Homeland Security titled “Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry into the United States, and Increasing Transparency among Departments and Agencies of the Federal Government and for the American People” (“The President’s Memo”) [link].

To learn more about the Travel Order as it affects individuals seeking immigration status in the United States, please see our articles about the suspension of entry from six countries [see article], the suspension of refugee travel and determinations [see article], and the suspension of the Immigrant Visa Waiver Program [see article]. Also see our article comparing the March 6 Travel Order to the January 27 Travel Order [see article]. Finally, please see our post containing a video of remarks by Secretary of State Rex Tillerson, Attorney General Jeff Sessions, and Secretary of Homeland Security John Kelly on the implementation of the new Travel Order.

STATED REASONS FOR THE TRAVEL ORDER’S SUSPENSION OF ENTRY AND REFUGEE TRAVEL PROVISIONS

Many crucial provisions of the January 27 Travel Order were blocked by federal courts [see opinion blog]. One of the reasons cited to by the United States Court of Appeals for the Ninth Circuit was that the Trump Administration failed to provide sufficient justification for the suspension of entry of alien nationals of seven countries and the suspension of refugee admissions and final determinations.

In addition to narrowing the scope of the Travel Order in the new March 6 version, President Trump offers more detailed explanations for his exercise of executive authority.

Sections 1(d) and (e) serve to explain the 90-day suspension of entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen in the new Travel Order. First, President Trump notes that all six of these countries are designated under section 217(a)(12) of the Immigration and Nationality Act (INA) as “countries of concern” for purpose of extra scrutiny under the Visa Waiver Program (VWP). The same justification was used to support the January 27 Executive Order [see blog]. In section 1(e)(i)-(vi), President Trump lists descriptions of each included country to support the suspension of entry under section 212(f) of the INA [see article].

Interestingly, President Trump exempts Iraq, which was included in the January 27 Executive Order and is now the only country designated under section 217(a)(12) that is not included in the new Travel Order. In section 212(g), President Trump explains the considerations that led to his change of heart since January 27 and his decision to not suspend the entry of nationals of Iraq. These reasons include strategic consideration stemming from the United States’ relationship with Iraq along with steps that have been taken by the Iraqi Government to “enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.” While Iraqi nationals may be subject to enhanced vetting, they are not subject to a temporary bar on entry.

Furthermore, President Trump has ordered new comprehensive vetting procedures and a country-by-country review to ensure that the immigration system is equipped to properly screen persons seeking visas to entry the United States. Accordingly, in section 2(c), he justifies the imposition of a 90-day suspension of entry on six countries of concern as being a step to “temporarily reduce the investigative burdens on agencies during the review period.”

In section 1(h) of the Travel Order, President Trump cites recent examples of individuals who were admitted to the United States as refugees and who were then charged with terrorism-related offenses. Furthermore, he notes that the Attorney General has reported to him “that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” In section 6(a) of the Travel Order, President Trump explains his 120-day suspension of travel of refugees into the United States and the decisions on applications for refugee status as integral to his directive to the Secretary of State, Secretary of Homeland Security, and the Director of National Intelligence to review the refugee program and determine what additional procedures must be put in place to ensure that individuals admitted as refugees “do not pose a threat to the security and welfare of the United States.”

COUNTRY-BY-COUNTRY REVIEW

In section 2(a) of the Travel Order, President Trump directs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to “conduct a worldwide review,” country-by-country, to determine whether additional information is needed from individual countries, and if so, what types of information, to allow the adjudication of applications by nationals of that country in order to determine that they are not security or public safety threats. The President makes clear that the Secretary of Homeland Security may determine that certain information is needed from particular countries even if it is not needed from every country.

In section 2(b) of the Travel Order, the President instructs the three officials conducting the country-by-country review to submit a report on the results of the worldwide review within 20 days of the effective date of the Travel Order (March 16, 2017). The report will list the information required from each country and a list of countries that do not provide adequate information. Under section 2(d), the Secretary of State will be required to request additional required information from foreign governments that failed to supply required information within 50 days of notification. Under section 2(e), if any such countries continue to fail to provide adequate information within 50 days of notification, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, will submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of nationals from those countries in “appropriate categories” until the Secretary of Homeland Security “certifies that the country has an adequate plan” to provide to requisite information or that it has already begun providing such information. Furthermore, the three officials may submit to the President the names of additional countries to the President for the implementation of “other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.” Section 2(f) gives the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, the discretion to submit to the President additional countries recommended for similar treatment, as well as any countries that they believe should be removed from the scope of a Presidential proclamation described in section 2(e).

Section 2(g) of the Travel Order directs the Secretary of State and the Secretary of Homeland Security to submit a joint report on the progress in implementing the Travel Order within 60 days of the effective date of the Travel Order, a second report within 90 days, a third report within 120 days, and a fourth report within 150 days.

In section 1 of the President’s Memo, he takes the position that the review “cannot delay the immediate implementation of additional heightened screening and vetting protocols and procedures for issuing visas to ensure that we strengthen the safety and security of our country.”

ENHANCED VETTING

In section 5(a) of the Travel Order, President Trump instructs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to implement a program to identify individuals in the course of immigration adjudications who seek to “enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry, or who present a risk of causing harm subsequent to their entry.”

The program required by section 5(a) must include a “uniform baseline for screening and vetting standards and procedures.” The Travel Order lists factors that may be considered as part of these new standards and procedures (paraphrased):

• In-person interview requirements;
• A database of documents provided by applicants to ensure that multiple applicants are not using duplicate documents;
• Amended application forms that include questions aimed at identifying fraudulent answers and malicious intent;
• Mechanisms for ensuring that applicants are who they claim to be;
• Mechanisms for assessing whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States;
• Any other appropriate means for ensuring the proper collection of data necessary for properly vetting applicants.

In section 5(b) of the Travel Order, the President directs the Secretary of State, in conjunction with the other three officials involved in creating the new vetting procedures, to submit to the President reports on the progress of the program within 60 days of the effective date of the Travel Order, within 100 days, and within 200 days.

Section 2 of the President’s Memo directs the Secretary of State, the Attorney General, and the Secretary of Homeland Security to implement procedures and protocols as soon as practicable to “enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.” President Trump instructs them to focus on (paraphrased):

• a. Preventing the entry of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts;
• b. Ensuring the proper collection of all necessary information to evaluate all grounds of inadmissibility, deportability, or grounds for the denial of other immigration benefits.

In section 3 of the President’s Memo, President Trump directs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of all other relevant executive departments and agencies “to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.” To this effect, President Trump directs these departments and agencies to issue new rules, regulations, or guidance to enforce laws relating to inadmissibility and subsequent compliance. Finally, President Trump directs that, upon the Secretary of Homeland Security’s issuance of such new rules, the heads of all other relevant executive departments and agencies “shall, as necessary and appropriate, issue new rules that conform to them.”

REFUGEES

In section 6(a) of the Travel Order, President Trump directs the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, to review the United States Refugee Admissions Program (USRAP) application and adjudication process. The review will be to determine “what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.” Subsequent to such review, the Secretary of State will implement these new procedures. This review will be completed during the 120-day period subsequent to March 16, 2017, which is also the period for which refugee travel and determinations are in most cases suspended. After the 120-day period, the Secretary of Homeland Security “shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures” implemented after the review “are adequate to ensure the security and welfare of the United States.”

In section 6(d) of the Travel Order, President Trump makes it the policy of the Executive Branch to provide State and local jurisdictions with a role in the process of determining the placement and settlement in their jurisdiction of aliens eligible to be admitted as refugees. The President directs that this should be done to the greatest extent permitted by law and as practicable. To this effect, the President directs the Secretary of State to review the issue and devise a proposal to promote the involvement of State and local jurisdictions.

RESCISSION OF EXECUTIVE AUTHORITY RELATED TO TERRORISM GROUNDS OF INADMISSIBILITY

In section 7 of the Travel Order, President Trump directs the Secretary of State and the Secretary of Homeland Security to consider rescinding exceptions permitted to terrorism-related grounds of inadmissibility under section 212(d)(3)(B) of the INA.

BIOMETRIC ENTRY-EXIT

In section 8(a) of the Travel Order, President Trump directs the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for travelers to the United States. In section 8(b), the President directs the Secretary of Homeland Security to submit reports on the progress of the biometric entry-exit system within 100 days of the effective date of the Travel Order, within 200 days, and within 365 days. After the first three reports, the Secretary of Homeland Security will submit further reports every 180 days until the biometric entry-exit system is fully deployed and operational.

RECIPROCITY

In section 10 of the Travel Order, the President directs the Secretary of State to review all nonimmigrant visa reciprocity agreements to ensure that they are truly reciprocal. If any agreements are found to not be reciprocal with respect to a specific country and visa category, the Secretary of State is directed to adjust the visa validity period, fee schedule, and other treatment to match the treatment of U.S. nationals by that country.

DATA COLLECTION

In section 12 of the Travel Order, the President directs the Secretary of Homeland Security, in consultation with the Attorney General, to make publicly available the following information to the American people as consistent with applicable law and national security (paraphrased):

• Information regarding the number of foreign nationals in the United States who have been charged or convicted of terrorism-related offenses while in the United States or who have been removed for reasons having to do with terrorism or national security;
• Information regarding the number of foreign nationals in the United States who were radicalized subsequent to entry and who then engaged in terrorism-related activities (including material support to terrorism-related organizations in countries that pose a threat to the United States);
• Information regarding the number and types of gender-based violence against women (including “honor killings”) in the United States committed by foreign nationals; and
• Any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General.

In section 12 of the Travel Order, the President directs the Secretary of Homeland Security to issue an initial report within 180 days of the effective date of the order. The initial report will include information dating back to September 11, 2001. The Secretary of Homeland Security shall issue subsequent reports every 180 days thereafter.

Section 4 of the President’s Memo contains further instructions with regard to data collection and reporting.

In section 4(a) of the President’s Memo, President Trump directs the Secretary of State and the Secretary of Homeland Security to issue regular reports — written for public use and understanding -regarding visas and adjustment of status. Beginning on April 28, 2017, and by the last day of the month every month thereafter, the Secretary of State must issue reports containing the following information:

• The number of visas that have been issued from each consular office within each country during the reporting period (specifying visa category and country of issuance); and
• Any other information that the Secretary of State considers appropriate.

Additionally, President Trump directs the Secretary of Homeland Security to issue reports on adjustment of status every 90 days (with the first to be issued within 90 days of the effective date of the President’s Memo). The reports should specify the type of adjustment of status, detailed class of admission, and country of nationality.

In section 4(b) of the President’s Memo, President Trump directs the Secretary of State, in consultation with the Secretary of Health and Human Services, the Secretary of Homeland Security, and the Director of Office of Management and Budget to, within 180 days of the President’s March 6, 2017 Memo submit a report “detailing the estimated long-term costs of the [USRAP] at Federal, State, and local levels…” This report, submitted to the President, will include recommendations on curtailing the described costs.

In section 4(c) of the President’s Memo, President Trump directs the Secretary of State, in consultation with the Director of the Office of Management and Budget, to submit to him within 180 days of the date of the President’s Memo, “a report estimating how many refugees are being supported in countries of first asylum (near their home countries) for the same long-term cost as supporting refugees in the United States…”

SEVERABILITY

Finally, in section 15(a) of the Travel Order, President Trump states that if any provision of the Travel Order or any specific application of it is held to be invalid, the unaffected portions of the Travel Order and the application of such provisions to other cases will not be affected. In section 15(b), the President states that if any provision or application of the Travel Order is held to be invalid due to the lack of certain procedural requirements, the relevant executive branch officials shall implement the requisite procedural requirements.

CONCLUSION

Although most of the immediate focus on the Travel Order relates to its provisions regarding the nationals of six countries and refugees, its more significant effects may be seen after the suspension periods expire. The Travel Order provides for the development of new vetting procedures, the creation of a biometric entry-exit system, and improved data reporting to the public. Please continue to follow our website for information relating to these and other immigration issues in the early months of the Trump Administration.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Secretary Tillerson, Attorney General Sessions, and Secretary Kelly Make Statements on Travel Executive Order

On March 6, 2017, Secretary of State Rex Tillerson, Attorney General Jeff Sessions, and Secretary of Homeland Security John Kelly released statements about President Donald Trump’s new travel Executive Order issued on the same day [link] [see blog]. The three department heads each defended the travel Executive Order and explained how their respective Departments would implement its provisions. You may watch the remarks of Secretary Tillerson, Attorney General Sessions, and Secretary Kelly here.

Video courtesy of the United States Department of State.

We will update the website with information about the contents of the travel Executive Order, agency guidance and judicial proceedings, and what it all means going forward throughout the next couple of weeks.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Why AILA’s «Justice Campaign» Misses the Mark on Advocacy During the Trump Administration

As a member of the American Immigration Lawyers Association (AILA), I receive many communications from them. Followers of my blog will likely notice that the opinions I express on immigration are well right of those expressed by most immigration attorneys and advocates seen in the media. AILA, being comprised of many of those immigration attorneys and advocates, tends to take positions to my left on immigration policy and many other issues. The differences have become clearer with the new immigration policies being implemented by the administration of President Donald Trump. To examine some of the differences, I would like to share with you and analyze an advocacy email I received from AILA announcing its “Justice Campaign” [see message].

AILA’S “JUSTICE CAMPAIGN”

AILA begins by stating that “[o]ver the last several months, a growing movement has arisen to oppose anti-immigrant rhetoric and policies that are grounded in stereotypes and xenophobia.” AILA writes that “[h]undreds of thousands of people” “have challenged policies that undermine our values, principles of fairness, and the rule of law.” AILA then states that “[t]housands of lawyers and many organizations who want to help are turning to AILA and the American Immigration Council because they know we have been leading the fight for a just immigration system for more than 70 years.”

It does not take a great detective to ascertain that AILA is referring to protests against President Trump and his immigration statements and policies. After discussing what has transpired over the past few months, AILA invites its members to join its “Justice Campaign.” AILA prefaces the Justice Campaign by stating that “our clients have suffered ‘separate, but unequal’ treatment at the hands of an outdated immigration system that does not guarantee due process for all.”

AILA states that through the Justice Campaign, it will:

• Foster a culture of aggressive, zealous representation.
• Provide our membership with the tools need to achieve positive case outcomes.
• Mobilize lawyers well beyond the immigration bar to bring their skills and their pro bono commitment to the fight.
• Leverage the transformative act of defending immigrants facing removal by providing opportunities for litigation and advocacy.
• Change the immigration system in this country.

Finally, in addition to fostering zealous representation of clients, AILA states that the Justice Campaign “will promote sensible, humane, and just immigration policies…”

WHERE I AGREE AND WHERE I DISAGREE

Before stating where I disagree with AILA and the “Justice Campaign,” I will note areas of agreement. As an immigration attorney, I take pride in zealously representing all of my clients and using every tool available to achieve positive case outcomes under the existing immigration laws. This passion is shared by everyone working at The Law Offices of Grinberg & Segal, PLLC. To that effect, AILA provides immigration attorneys with extensive resources and tools to assist in legal research and effectively representing clients. I fully support AILA in its efforts to help immigration attorneys ensure that all of their clients receive the best representation possible and fair treatment under the immigration laws of the United States.

Furthermore, I agree with AILA that we have “an outdated immigration system.” However, I often disagree with AILA on the remedies for this outdated immigration system.

To be sure, I was critical of much of President Trump’s rhetoric and proposals on immigration during the campaign. I encourage you to read my blog entries from the presidential primaries and the general election to see many of my critiques of the Trump campaign. However, we must now judge President Trump and his administration on the immigration policies it is inacting, not on his campaign rhetoric. The American people rendered a verdict on President Trump’s campaign in November — that is why he is “President” Trump now.

I reluctantly supported President Trump in the general election [see blog], and I have thus far been happy with many — but not all — of his policies. He is making inroads on improving immigration enforcement from the Obama Administration [see article], and I support the principles behind his so-called “travel ban” (although I was critical of the implementation of the initial Executive Order [see blog]). Immigration reform must start with securing our borders, properly enforcing the immigration laws, and ensuring that our immigration system is oriented toward the interests of the United States [see blog]. President Trump is therefore correct to focus on enforcement to start. Furthermore, President Trump has made promising comments regarding the idea of reforms to make our immigration system more “merit-based,” that is, focused on bringing in high-skilled workers rather than fostering the migration of persons who may not be self-sufficient or otherwise lack skills that would contribute to the U.S. economy [see blog].

AILA’s approach to President Trump lacks any semblance of nuance at all. Much of its statement reads as if it is as stuck in the campaign as President Trump does himself on occasion. While his enforcement policies are certainly harsher than those that would be preferred by AILA, the President Trump has shown already that he is open to compromise. For example, he has thus far taken no action to rescind the Deferred Action for Childhood Arrivals (DACA) Program [see article], and has pledged to work for a permanent solution for DACA recipients [see blog]. Furthermore, President Trump has pointed to supporting pro-immigration reforms to bring in high-skilled workers, as I noted in the previous section.

Just as I disagreed with many of President Obama’s immigration policies, AILA will surely disagree with many of President Trump’s. However, AILA’s Justice Campaign ignores the reality that the majority of Americans support secure borders and immigration enforcement in addition to pro-immigration policies. There are certainly areas where AILA will feel compelled to oppose the Trump Administration categorically. However, AILA’s Justice Campaign would have the potential to be far more effective if it also examined areas where it may be able to work with the Trump Administration to modernize our immigration system with pro-immigration reforms.

For all of our disagreements, please see one of my blogs for an example of where my position on an immigration issue is in accord with AILA’s (note that the Supreme Court would rule the other way) [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Supreme Court Rules That Void-for-Vagueness Doctrine Does Not Apply to Federal Sentencing Guidelines

INTRODUCTION

On March 6, 2017, the Supreme Court of the United States issued a decision titled Beckles v. United States, No. 15-8544 (2017) [PDF version]. Beckles is not an immigration case and is unlikely to have a direct effect on immigration law. However, it is tangentially related to the Supreme Court decision in Johnson v. United States, 576 U.S. __ (2015) [PDF version]. We discussed Johnson in an article [see article] and broadly in the context of the ongoing litigation surrounding the Ninth Circuit decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [see article], which is now before the Supreme Court as Sessions v. Dimaya, 15-1498 [see article; oral argument recap].

As a matter of interest, we will review the Beckles decision in brief and explain how it is related to Johnson.

BRIEF OVERVIEW OF BECKLES

In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminals Act (ACCA) was void for vagueness under the Due Process Clause of the Fifth Amendment. The ACCA is a sentence-enhancement statute. In Johnson, the residual clause had necessitated the imposition of a harsher sentence if certain predicate convictions existed.

Beckles addressed the same predicate conviction as did Johnson. However, the issue at hand in Beckles was whether the federal sentencing guidelines may be challenged on vagueness grounds. The sentencing guideline at issue in Beckles is worded identically to the ACCA’s residual clause that was held unconstitutionally vague in Johnson. However, the holding in Johnson, finding a criminal sentence-enhancement statute void for vagueness, did not result in the identically worded sentencing guidelines being susceptible to a vagueness challenge.

In Beckles, the Supreme Court rejected the appellant’s vagueness challenge 7-0. However, while the Justices were unanimous in the result, they were not all in accord in the reasoning.

Associate Justice Clarence Thomas wrote the opinion of the court, which was joined by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito. Writing for the five-Justice majority, Justice Thomas took the position that the void for vagueness doctrine does not apply to sentencing guidelines. The opinion distinguished sentencing guidelines, which “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range,” from a statute that mandate a “specific sentence.” However, while holding that sentencing guidelines are immune from the void-for-vagueness doctrine, Justice Thomas made clear that sentencing guidelines are not immune from constitutional scrutiny in general. The decision notes that sentencing guidelines may be, under certain circumstances, scrutinized under the due process clause.

Justice Anthony Kennedy authored a concurring opinion which stated that cases may arise “in which the formulation of a sentencing provision leads to a sentence, or pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns.” While taking the position that “[t]he existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing,” Justice Kennedy did not seem to categorically foreclose the idea that sentencing guidelines could be challenged for arbitrariness, albeit “[s]ome other expliciation of the constitutional limitations would likely be required.”[1]

Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor each wrote opinions concurring in the judgment only. This means that they agreed with the result in the specific case only. Both Justices Ginsburg and Sotomayor found it unnecessary for the majority to reach a decision on the applicability of the void-for-vagueness doctrine to federal sentencing guidelines. Justice Sotomayor went even further, stating that she found the Court’s decision regarding the inapplicability of void-for-vagueness doctrine to federal sentencing guidelines to be “deeply unsound.” Justice Ginsburg took the position that the Court should have deferred consideration of whether the void-for-vagueness doctrine applies to federal sentencing guidelines until a case that requires a ruling on the issue comes before the Court.

Please note that Associate Justice Elena Kagan took no part in the consideration of Beckles.

CONCLUSION

Although Beckles is unlikely to implicate immigration law as directly as Johnson, it is an interesting look at how the Court considered Johnson with regard to federal sentencing guidelines. The decision constitutes binding precedent on all courts and administrative adjudicators across the United States. In limited contexts, where the length of a sentence is determinative of whether immigration penalties attach, Beckles eliminates one avenue for challenging federal sentencing guidelines. The decision is relatively short and well worth reading for those who want to see the detailed analysis of Justice Thomas, Justice Kennedy (wrote a concurring opinion), Justice Ginsburg, and Justice Sotomayor.

Please continue to follow our site for more news about new Supreme Court decisions and immigration law, including the upcoming decision in Sessions v. Dimaya.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Nora Demleitner at SCOTUSblog took the position that Justice Kennedy “sought to keep the door ajar for possible challenge” to a sentence of pattern of sentencing that implicates constitutional concerns for arbitrariness. Demleitner suggests that this view is at tension with Justice Thomas’s opinion. See Demleitner, Nora, “Opinion analysis: Court immunizes advisory sentencing guidelines against vagueness challenges,” scotusblog.com, (Mar. 7, 2017)

A Troubling Speech on the Nature of the ISIS Threat

On March 2, 2017, Hannah Ellis-Petersen of The Guardian posted an article titled “Riz Ahmed warns lack of diversity on TV will drive young to ISIS” [PDF version].[1]

The article discusses a speech delivered to the House of Parliament in London by Riz Ahmed, a Pakistani-British actor and rapper, on the subject of diversity in film and television.[2] Ahmed spoke broadly of encouraging diversity in film and television, and he was critical of the United Kingdom for being, in his opinion, behind the United States in this area. However, Ahmed made an interesting argument regarding what he perceived as the power of diversity in film and television to prevent young people from joining ISIS. While this portion of his speech has received much attention and acclaim, I will explain why I find it quite troubling, given my strong interest in immigration issues.

The Guardian quotes Ahmed as saying that, “[i]f we fail to represent [in the media], we are in danger of losing people to extremism.” Ahmed continued:

“In the mind of the [ISIS] recruit, he’s the next James Bond right? Have you seen some of those [ISIS] propaganda videos, they are cut like action moves. Where is the counter narrative? Where are we telling these kids they can be heroes in our stories, that they valued?”

The Telegraph then quoted a later passage of Ahmed’s speech, where he made his troubling argument most clearly:

“If we don’t step up and tell a representative story … we are going to start losing British teenagers to the story that the next chapter in their lives is written in Syria. We are going to see the murder of more MP’s like Jo Cox because we’ve been mis-sold a story that is so narrow about who we are and who we should be.”

Ahmed’s argument is anything but poignant or inspiring. I cannot say what his intent was in making the claims that he made in his speech, but I will explain why he was wrong to argue his point in this way and why his argument has very troubling implications.

Firstly, I will start by noting that I have no opinion on the state of diversity in the UK media. Certainly, it is to the benefit of everyone that talented actors and actresses obtain leading roles in movies and on television. There is certainly no reason to begrudge Ahmed for arguing that talented actors and actresses are being overlooked in the United Kingdom.

However, Ahmed’s decision to tie the goal of increasing the representation of Muslims in movies and television to preventing people from the UK from joining ISIS is both ignorant and perverse.

Firstly, Ahmed is taking an issue that may well be worthy of discussion and attempting to stifle discussion and debate over solutions by conflating it with counter-terrorism. Even if he has correctly diagnosed a problem with the UK television and film industry and his call for more diverse and representative casting is entirely warranted, the issue has nothing to do with preventing the assassination of UK public officials, discouraging recruitment by and support of ISIS, or otherwise preventing people from engaging in rape and murder in the name of Islam in the Middle East.

Secondly, Ahmed implicitly attempts to separate ISIS from its ideological basis. ISIS, like other Islamist groups, is based on a specific reading of Islamic scripture that conflates religious practice with an oppressive political system. Many of these groups are also willing to use extreme violence to achieve their ends. ISIS and other similar groups such as Al Qaeda, Hezbollah, and Hamas, must be acknowledged and confronted as ideological movements. It is wish casting to separate the ideology from the movements and to portray their sponsored activities as random violent “extremism” with no ideological basis or objective.

Ahmed is correct in noting that ISIS uses social media to appeal to the sensibilities of foreign youths. However, it is borderline insulting and remarkably patronizing to argue that the only thing standing between thousands of young Muslims in the UK and suicide bombings, torture, rape, and murder in the Middle East is whether Ahmed or some other actor gets cast in a movie. As Ben Shapiro noted in the Daily Wire, “I didn’t see a lot of Orthodox Jews on television growing up. Somehow, I didn’t end up a member of the Neturei Karta.”[3]

Ahmed’s speech also has sweeping — albeit likely unintended — anti-immigration consequences if it is taken to its logical conclusion. Followers of my blog will be aware that while I was critical of much of now-President Donald Trump’s rhetoric on immigration during the campaign [see blog], I have broadly supported his call for “extreme vetting” [see blog] and for the temporary suspension of immigration from terror-prone countries [see blog]. I support these measures in recognition of the fact that the United States faces a particular threat from Islamist terror, and that the first priority of our immigration system should be ensure that immigration does not harm the security and the national interest of the United States.

Many have argued that the policies I support are not reasonable but drastic. However, if what Ahmed says is true, that would seem to call for far more drastic proposals regarding the suspension of immigration and surveillance than what I have proposed. As the headline to Shapiro’s article on the issue in the Daily Wire summarized the speech — correctly — “’Rogue One’ Actor: If You Don’t Put Muslim Actors On TV, Muslims Will Join ISIS.” If Ahmed is correct in contending that Muslims are so susceptible to the lure of Islamist terror that television casting will drive them into waging a holy war in Syria, one would have to consider some very dramatic solutions that go far beyond who stars in Dr. Who, Downton Abbey, or the next James Bond movie.

Fortunately, Ahmed is wrong in his diagnosis of the Islamist terror threat and on his typecasting of millions of young Muslims in western countries. Once we understand terrorism as the primarily ideological issue that it is, we can create vetting protocols to best guard against those with dangerous ideologies from entering the United States, and guard against those who wish to do us harm on behalf of ISIS or other similar groups [see blog]. By improving vetting and taking into account country conditions in making immigration policy, the United States and European countries can better ensure that they do not allow entry to people who allegedly may only be prevented from mass murder in the name of Islam by being satisfied by the racial and religious demographics of the Academy Awards. The situation only becomes as dangerous as Ahmed seems to believe it is when we ignore the nature of the Islamist threat and the proliferation of dangerous ideologies from unstable regions of the world.

By appropriately distinguishing Muslims who mean to do harm based on particular readings of Islamic scripture from the millions of non-violent and non-Islamist adherents to Islam, we can create a sound immigration policy that takes into account the Islamist threat without gratuitously insulting and patronizing a broader swath of Muslims like Ahmed did in his address.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Ellis-Petersen, Hannah. “Riz Ahmed warns lack of diversity on TV will drive young to Isis,” theguardian.com (Mar. 2, 2017)
2. Renshaw, David, “Watch Riz Ahmed Speech To U.K. Parliament About The Importance of Diversity On TV,” thefader.com, (Mar. 3, 2017)
3. Shapiro, Ben, “’Rogue One’ Actor: If You Don’t Put Muslim Actors On TV, Muslims Will Join ISIS,” dailywire.com, (Mar. 3, 2017)

USCIS Meets the Congressionally Mandated 65,000 H1B Cap for FY 2018

On April 7, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated 65,000 visa H1B cap for fiscal year (FY) 2018 [link]. The USCIS also announced that it had received a sufficient number of H1B petitions to meet the 20,000 visa U.S. advanced degree exception.

Because the congressionally mandated FY 2018 H1B cap has been reached, the USCIS will reject and return filing fees for any unselected cap-subject H1B petitions that are not duplicate filings.

The USCIS will continue to process H1B petitions that are otherwise exempt from the H1B cap. The USCIS reminded stakeholders that it suspended premium processing for H1B petitions effective April 3, 2017. That suspension includes cap-exempt H1B petitions. Please see our full article on the temporary suspension of premium processing of H1B petitions to learn more [see article].

The USCIS explained that petitions filed on behalf of H1B workers who have already been counted previously against the annual H1B cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 H1B cap. Accordingly, the USCIS will continue to accept and process H1B petitions that are filed to:

• Extend the amount of time a current H1B worker may remain in the United States;
• Change the terms of employment for H1B workers;
• Allow current H1B workers to change employers; and
• Allow current H1B workers to work concurrently in a second H1B position.

The USCIS announcement marks the end of a busy filing season for H1B petitions subject to the congressionally mandated FY 2018 H1B cap. H1B petitioners, employers, and workers should always consult with an experienced immigration attorney in the field of employment immigration regarding any issues relating to the H1B program.

Please see our selection of articles on the H1B program to learn more [see category].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.