Border and Enforcement News

Posted on: October 23rd, 2017
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Siskind Summary – The RAC Act of 2017

Section 1. Short Title – “Recognizing America’s Children Act’’ or the RAC Act

Section 2. Table of Contents

Section 3. Definitions.

Alien Enlistee – conditional permanent residents who satisfy the requirements of this act by enlistment and service in the Armed Forces of the US.

Alien Postsecondary Student – conditional permanent residents who satisfy the requirements of this act by enrolling in an institution of higher education in the US

Conditional Permanent Resident – CPRs are not considered to be unlawfully present in the US and are considered to be aliens lawfully admitted for permanent residence on a conditional basis. They must have the intention to permanently reside in the US and are not required to have a foreign residence. They are considered inspected and admitted for purposes of section 245(a) of the INA so they can apply to adjust status in the US.

Conviction – doesn’t include adjudications of guilt that have been dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated, an order of probation without judgement or any similar disposition.

Immigration Laws – as defined in section 101(a)(17) of the INA.

Institution of Higher Education – as defined in section 102 of the Higher Education Act of 1965 except doesn’t include institutions outside the US.

Military-related Terms – “armed forces”, “active duty”, “active service” and “active status” have the meanings given in section 101 of Title 10 of the US Code.

 

Section 4. Cancellation of Removal of Certain Long-Term Residents Who Entered the United States as Children. 

Special rule for certain long-term residents who entered the US as children –

DHS may cancel removal of an alien who is inadmissible or deportable from the US or who is the child of another alien who is lawfully present in the US in E-2 non-immigrant visa status, and grant the alien conditional permanent resident status if the alien shows by a preponderance of the evidence the following:

 

  • Been physically present in the US for a continuous period since 1/1/2012;
  • Younger than 16 on the date of initial entry to the US
  • If 18 or older, 1) has earned a high school diploma, commensurate alternative award obtained from a public or private high school or secondary school or obtained a GED, 2) has been admitted to an institution of higher education in the US, or 3) has a valid work authorization.
  • Been a person of good moral character since the date alien entered the US.
  • Not inadmissible because of health-related grounds, criminal grounds, security grounds, being a public charge, alien smuggling, being permanently ineligible for citizenship or draft evading, practicing polygamy, international child abduction, or voting unlawfully.
  • Not deportable because of alien smuggling, marriage fraud, criminal offenses, security grounds, or being a public charge.
  • Not convicted of any federal or state offense punishable by a maximum term of more than one year or a combination of offenses under federal or state law for which the alien was sentenced to imprisonment for more than one year. Exception if conviction tied to immigration status.
  • The alien has never been under a final administrative or judicial order of exclusion, deportation, or removal unless the alien has remained in the US under color of law after such order was issued of received the order before attaining the age of 18 [KEY DIFFERERENCE FROM DREAM ACT]
  • DHS may waive the criminal grounds, the health grounds, the public charge grounds and the alien smuggling grounds for humanitarian purposes or family unity or when it is in the public interest.
  • Applicants can apply affirmatively for CPR without having to be in removal proceedings.

DHS may not cancel removal or grant CPR unless the alien submits biometric and biographic data (exceptions made for certain applicants unable to provide such data because of physical impairment.

DHS shall use biometric and biographic data to conduct background checks and determine if there is any criminal, national security or other factors that would render a person ineligible for relief. No cancellation of removal until checks completed.

A medical examination is required.

Applicants must demonstrate compliance with draft registration requirements.

  • Termination of continuous period – any period of continuous residence is not terminated when someone receives a notice under Section 239 of the INA.
  • Treatment of certain breaks in residence – an alien fails to maintain continuous physical presence in the US if the person has departed the US for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. DHS may extend the time by 90 days if the alien can show exceptional circumstances like a serious illness or the death of a close relative.
  • Regulations – DHS shall have 180 days to issue interim regulations which will take effect upon publication. Final regulations will be published within a reasonable period of time.
  • Removal of Alien – DHS may not remove an alien who show prima facie eligibility for cancellation of removal and CPR status and is provided a reasonable chance to file an application.

 

Section 5. Conditional Permanent Resident Status. 

CPR status granted initially for five years. CPRs shall be entitled to employment authorization and enlisting in the military.

CPRs may travel outside the US as long as they are not absent for a period exceeding 180 days or the alien was outside the US serving in the armed forces.

DHS may terminate CPR status if a person is 18 or over and, in the case of a postsecondary student, the alien failed to enroll in an accredited institution of higher education in the US within a year after the date CPR status was granted or to remain enrolled. For those qualifying based on employment, the alien has not been employed for a total period of 48 months during the 5 year period beginning on the date CPR status was granted. For those qualifying based on military service, they failed to enlist within 9 months after CPR status granted or has been discharged and not honorably. Termination also possible if a person no longer meets the CPR requirements or becomes a public charge. If terminated, the person reverts to the status he or she had before being granted CPR.

CPR may be extended for five years. The alien must show good moral character during the entire period the person has been a CPR, is in compliance with the inadmissibility/deportability sections and has not abandoned residence in the US. Absences for more than 365 days, in the aggregate, during the CPR period, are presumed to mean abandonment of permanent residency. If the alien is 18 or older and a postsecondary student, has graduated from an accredited institution. For employed aliens, the alien has been employed a total period of 48 months during the 5-year period beginning on the date CPR status was granted. Or for an enlistee, has served as a member of a regular or reserve component of the armed forces in an active duty for at least 3 years, and, if discharged, receive an honorable discharge.

 

Section 6. Removal of Conditional Basis for Permanent Residence

A CPR may file an application to remove conditions on permanent residence. Successful applicants will adjust to permanent residence without conditions. A failure will result in the termination of CPR. Removal applications can be filed after the initial extension and before ten years. Applicants will maintain CPR while the application is pending.

Applicants for removal of conditions must show good moral character during the period the alien is a CPR. The alien must not have abandoned US residence by showing no absences cumulating more than 730 days (excluding time stationed abroad in the armed services. Applicants must also meet the citizenship test civics and English requirements (exception is made for physical impairments that prevent). Also, applicants cannot owe back taxes.  Applicants will submit biometrics and undergo background checks prior to conditions being removed.

Normal numeric limits on green cards will not apply.

Once a person has had conditions removed and adjusted to permanent residency, the applicant can apply for citizenship.

 

Section 7. Treatment of Aliens Meeting Requirements for Extension of Conditional Permanent Resident Status – aliens complying with the rules can extend CPR and apply for adjustment without conditions.

 

Section 8. Exclusive Jurisdiction.

DHS has exclusive jurisdiction to determine eligibility for benefits under the Act. Aliens in removal proceedings, however, are under the jurisdiction of DOJ and any provisions in the bill dealing with that subject to the AG’s jurisdiction until proceedings have terminated.

 

Section 9. Confidentiality of Information.

No US government official shall use the information provided in an application under this Act to initiate removal proceedings against any person identified in the application or publish information about an individual in an application and cannot let non-government officials from viewing information in an application. But information may be shared with law enforcement or intelligence officials.

Aliens engaged in fraud in an application may have their information released to an immigration enforcement, law enforcement or national security agency.

Fines for violating this section are up to $10,000.

 

Section 10. Treatment of Conditional Permanent Residents for Certain Purposes.

In general – People granted CPR under this act, while in such status, shall be considered lawfully present for all purposes.

Individuals who have met the requirements under this Act of adjustment from CPR to LPR shall be considered, as the date of adjustment, to have completed the 5-year period required for certain Welfare benefits under Section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

 

Section 11. GAO Report. Within 7 years of enactment, the Comptroller General of the US shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House a report listing

  • The # of aliens eligible for cancellation of removal and grant of conditional permanent resident status;
  • The # of aliens who applied;
  • The number of aliens granted conditional status;
  • The number who converted to regular adjustment of status.

Section 12. Military Enlistment – technical amendment

 

Section 13. Naturalization of Enlistees. 

For purposes of Sections 328 and 329 of the INA, alien enlistees shall be considered to have been lawfully admitted for LPR status without regard to the conditional status of such admission.

***

Siskind Summary – National Venture Capital Association v. Duke (Filed 9/19/2017)

Introduction

There are six plaintiffs – the National Venture Capital Association, two individual company founders and two startup companies. The defendants are Elaine Duke, acting Secretary of the Department of Homeland Security and DHS itself as well a James McCament, acting Director of USCIS and USCIS itself.

The plaintiffs are suing over the “unlawful delay” of the start date of the International Entrepreneur Rule which will allow entrepreneurs to stay in the US to grow their new companies. The complaint’s introduction explains the benefits of the new rule and the reasoning behind its creation.

The final rule issued on January 17, 2017 was set to take effect on July 17, 2017. Beginning on that date, applicants were supposed to be able to apply for “parole” which would allow work and travel if they could demonstrate a substantial role and ownership stake in a company founded in the US in the last five years and that the company received a substantial amount of funding from investors or present other comparable “evidence of substantial and demonstrated potential for rapid business growth and job creation.”

On July 11th, the Trump Administration announced the effective date of the rule would be delayed until March 14, 2018 and that it intended to reconsider the rule in light of the President’s executive order directing DHS to “ensure that parole authority … is exercised only on a case-by-case basis.” The Defendants admit the “delay” is a de factor repeal.

Defendants did not provide any notice or opportunity for advance comment to the public. Instead, Defendants offered a “post-promulgation public comment” on their decision to delay the rule.

Justification offered for a lack of notice and comment was the Administration Procedure Act’s “good cause exception to public participation” which allows agencies to skill notice and comment in extraordinary circumstances. It would waste limited agency resources implementing a rule that will almost certainly be rescinded.

The delay is unlawful under the APA. Courts make notice and comment the default and the good cause exception is to be narrowly construed and invoked in extraordinary circumstances. DHS could have offered a comment period during the six months after the executive order was released up until the rule’s effective date.

Plaintiffs are requesting the court declare the delay of the rule invalid and enjoin Defendants to begin accepting and adjudicating parole applications from qualified entrepreneurs.

 

The Parties

Plaintiffs

National Venture Capital Association – the largest organization of venture capitalists in the US. NVCA notes that if the effective date of the rule continues to be postponed, its members will be harmed because many have invested in companies with foreign founders and the suspension of the rule has made it more difficult for NVCA members to make new investments in companies founded by foreign entrepreneurs.

Atma and Anand Krishna – two brothers who are citizens of the United Kingdom and are founders of LotusPay a digital payment platform. Received funding from the prestigious startup accelerator Y Combinator. Anand is on a soon to expire B-1 business visitor visa. Atma has already left the country.

Omni Labs, Inc. – provides companies with a platform for data visualization and analytics to ain in their marketing operations. Two of the founders are Indian citizens – Nishant Srivastava and Vikram Tiwari. Prior H-1B and L-1 applications have failed. They got Canadian permits and reside there today. Company maintains a Vancouver office because of an inability to get a US visa.

Peak Labs LLC (doing business as Occasion) – a platform that service provides can use to book appointments and receive payments. The company already has six US workers and plans to hire more as it expands. Customer base of over 3,500 businesses and 500,000 people have used the booking software. The company has already received $1.5 million in investment from angel funds. Founder Pelle ten Cates is a Netherlands citizen who failed to get an H-1B visa in the lottery.

Defendants – Description of the government officials and agencies named.

 

Jurisdiction and Venue

28 USC Section 1331 – there exists between the parties an actual and justiciable controversy

Defendants’ delay of the rule constitutes a “final agency action” reviewable under the APA (“an order delaying a rule’s effective date is tantamount to amending or revoking a rule” and constitutes reviewable final agency action).

Filed in DC District Court because defendants reside there.

 

Immigrant Entrepreneurs Benefit the United States

Plaintiffs discuss the various economic and other benefits immigrant entrepreneurs provide the US. Also explains why other visa options are frequently unavailable and why the lack of such paths disadvantages the US in the global economy.

 

The International Entrepreneur Rule

Explains the history of the rule and the criteria for applying for entrepreneur parole. Notes that even if applicants meet the rule criteria, an adjudicator must “conclude, based on the totality of the circumstances, that both: 1) The applicant’s parole would provide a significant public benefit, and 2) the applicant merits a grant of parole as a matter of discretion.”

“As DHS noted, the Rule falls well within the Secretary of Homeland Security’s authority under current law to ‘parole individuals into the United States, on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” Examiners maintain discretion and rule is designed to provide general criteria.

DHS stated in final rule that it would “increase and enhance entrepreneurship, innovation and job creation in the United States.” It also rejected the idea that it would harm the US labor market.

DHS gave the rule an effective date of six months from promulgation in order to ensure it had time to properly roll out.

 

The Unlawful Delay of the Rule

DHS waited until the last minute and then delayed effective date almost a year. DHS provided no advance notice of the delay nor did it give the public any opportunity to comment on the decision in advance.

DHS actions are largely a charade. It has made clear it intends to rescind rule and post-delay comments are meaningless “nothing more than theater.”

 

The Harm Caused to Plaintiffs by the Delay

Outlines in more detail the harms faced by each plaintiff (expands on what has been summarized above).

 

First Cause of Action

The Delay of the International Entrepreneur Rule Violates the Notice-and-Comment Requirement of the Administrative Procedure Act, 5 USC Section 553

Notes requirement to provide notice and an opportunity to comment when issuing rules and gives a good cause exception when that process is impracticable, unnecessary or contrary to the public interest. Defendants didn’t provide advance notice-and-comment before delaying the effective date of the rule and Defendants failed to include an adequate statement of the reasons for their finding of good cause.

Good cause is plainly lacking. The section is to be rarely used and generally used for emergency situations. DHS’ two justifications – wasting resources and causing confusion – are adequate. DHS could have offered notice and comment in plenty of time. Claiming in the last week the need to expend additional resources is implausible. “DHS cannot seriously contend that it intended to develop a system for adjudicating applications, yet took no steps to do so, until the final week before the Rule was to take effect. Either DHS always intended to delay the Rule, and could have easily offered an opportunity for notice and comment to the public, or DHS has already expended significant resources in developing such a system, and any additional resources DHS would expend are minimal. Indeed, DHS already promulgated several of the documents needed to apply for parole when it promulgated the final Rule.”

DHS didn’t provide any details or factual findings corroborating claim of expending significant resources.

DHS claim that the public would rely on the rule to their detriment in the absence of a delay, Mobil Oil v. DOE case says that’s not enough for good cause. Courts have also rejected argument that “an alleged pressing need to avoid industry compliance with regulations that were to be eliminated” constitutes good cause for bypassing notice and comment. Environmental Defense Fund v. EPA.

Potential applicants had already taken steps to qualify for the rule such as hiring counsel, preparing paperwork and rearranging ownership stakes. Thus, any harm to the public has already occurred as a result of DHS’s last-minute decision to delay the rule.

And potential reliance interests were created by Defendants’ own procrastination.

DHS’s solicitation of “post-promulgation” comments does not make up for its failure to offer advance notice and comment. APA is designed to give affected parties an opportunity to participate in agency decision-making early in the process.

Request for Relief

Declare the delay a violation of APA’s notice and comment requirement, enjoin Defendants from delaying effective date and begin accepting and adjudicating applications, award plaintiffs their costs and aware other relief the court deems proper

Signed by American Immigration Council and Mayer Brown LLP

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