Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
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Fourth Circuit Upholds Rejection of Trump Travel Ban
The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration’s revised executive order barring entry into the United States of people from certain countries. Chief Judge Roger Gregory noted that the question for the court, distilled to its essence, was whether the Constitution protected plaintiffs’ right to challenge the executive order, which “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” He noted that “[s]urely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” He said that Congress granted the President broad power to deny entry to the United States, but that this power is not absolute. “It cannot go unchecked when, as here the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.” Among other things, the court took into account not just the text of the executive order but also the context of statements made by President Trump both before and after his election and assumption of office. For example, the court noted that on December 7, 2015, then-candidate Trump published a “Statement on Preventing Muslim Immigration” on his website that proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Among other things, the statement noted “great hatred toward Americans by large segments of the Muslim population.” The court noted that this statement remained on President Trump’s campaign website at least until February 12, 2017, and was highlighted on Twitter. On March 9, 2016, then-candidate Trump said, “I think Islam hates us,” and renewed his call for a ban on Muslim immigration in a March 22, 2016, interview. And when asked about a tweet that said that calls to ban Muslims from entering the United States were offensive and unconstitutional, then-candidate Trump responded, “So you call it territories. OK? We’re gonna do territories.” In an interview a week later, he said, “I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” With respect to people revering the part of the Constitution that guarantees religious freedom, he said, “I view it differently.” The court said, among other things, that it was “unmoved by the Government’s rote invocation of harm to ‘national security interests’ as the silver bullet that defeats all other asserted injuries.” Citing a 1967 case, United States v. Robel, the court noted that implicit in the term “national defense” is “the notion of defending those values and ideals which set this Nation apart….It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties…which makes the defense of the Nation worthwhile.” National security “may be the most compelling of government interests,” the court observed, “but this does not mean it will always tip the balance of the equities in favor of the government.” The court noted that unconditional deference to a government agent’s invocation of “emergency” has a “lamentable place in our history” and that the government’s asserted national security interest appeared to be a “post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.” The court said it remained unconvinced that the relevant section of the executive order “has more to do with national security than it does with effectuating the President’s promised Muslim ban.” Circuit Judge Wynn, concurring, noted that “[i]nvidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination.” In this case, he said, the invidious discrimination is “layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their national origin.” Laid bare, he said, “this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims,” which he said contravenes the authority Congress delegated to the President under the Immigration and Nationality Act, and is unconstitutional under the Establishment Clause. Several judges dissented. The government stated that it intends to appeal to the Supreme Court. The 205-page decision, including the dissents, is at http://coop.ca4.uscourts.gov/171351.P.pdf.
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DHS Extends TPS Designation for Haiti
The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Haiti for 6 months, from July 23, 2017, through January 22, 2018. Although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its designation, conditions in Haiti supporting its designation continue to be met, DHS said. A worker who is a current beneficiary of Haiti’s designation for TPS and wants to use his or her Form I-766, Employment Authorization Document (EAD), as evidence of employment eligibility after it expires on July 22, 2017, must timely file application to renew that EAD by July 24, 2017. Timely filing automatically extends the validity of the expired EAD for 180 days, until January 18, 2018. (The Federal Register notice does not automatically extend the validity of the EAD for these beneficiaries and is not an acceptable document for Form I-9 Employment Eligibility Verification purposes.) USCIS will then provide a Form I-797C, Notice of Action. If the EAD and Form I-797C both contain either category code “A-12” or “C-19,” this combination is considered a List A document for I-9 purposes. Employers will need to reverify employment authorization for these employees by January 18, 2018. DHS encourages Haitian TPS beneficiaries during this 6-month extension “to prepare for their return to Haiti in the event Haiti’s designation is not extended again, including requesting updated travel documents from the government of Haiti.” At least 60 days before January 22, 2018, DHS Secretary John Kelly will re-evaluate the designation for Haiti and will determine whether another extension, a re-designation, or a termination is warranted. Additional information, including where to file, is at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-statusdesignated-country-haiti.
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USCIS Reaches CW-1 Cap for FY 2018
U.S. Citizenship and Immigration Services (USCIS) announced that as of May 25, 2017, it had received a sufficient number of petitions to reach the numerical limit (cap) of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year (FY) 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017. USCIS said it will issue subsequent guidance when the FY 2018 cap is set and when the agency is able to announce the final receipt date. Because the final receipt date will depend on the FY 2018 cap, it is also possible that USCIS will not accept some petitions it received on or before May 25, 2017. The agency noted that it will reject CW-1 petitions received on or after May 26, 2017, that request an employment start date before October 1, 2018. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition. If USCIS rejects an extension petition, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition, USCIS noted. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the Commonwealth of the Northern Mariana Islands (CNMI) within 10 days after the CW-1 validity period expires, unless they have some other authorization to remain under U.S. immigration law. New employment petitions and extension-of-stay petitions are generally subject to the CW-1 cap. All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 derivative family members. USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS noted, however, that it will reject a petition if it is filed more than 6 months in advance. For more information, see https://www.uscis.gov/working-united-states/temporary-workers/cw-1- cnmi-only-transitional-worker. The petition is at https://www.uscis.gov/i-129cw.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.