United States: 2017 Immigration Policy Roundup

Last Updated: January 4 2018
Article by Kevin J. Fitzgerald and Punam Singh Rogers

This year saw significant changes to immigration policy in the United States. Here is a brief roundup of recent developments that companies should continue to monitor in 2018.

The Travel Ban

Background

President Trump issued the third revision of his travel ban entitled "Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats" on September 24, 2017. This proclamation suspended entry into the United States under most circumstances for nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, and North Korea. It also suspended entry into the US for certain officials of the Venezuelan government and their immediate family members. Chad, North Korea, and Venezuela are new additions to the list of "banned" countries.

Click here to read our full analysis on the travel ban.

Where we are today

On December 4, 2017, the Supreme Court entered orders (links here and here) staying preliminary injunctions issued in the Fourth and Ninth Circuits to block the operation of the third revision of President Trump's travel ban. These orders effectively permit the third travel ban to operate until the appeals of these injunctions are finally resolved. Click here for more details.

This third Travel Ban order represents a continuation of President Trump's efforts to ban travel from certain countries that began with his January 27, 2017 Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States," which similarly banned entry by nationals of Iran, Libya, Somalia, Sudan, Syria, Yemen, and Iraq. In most instances, these restrictions were intended to go into effect on October 18, 2017, but did not until now. It appears that these restrictions will persist indefinitely.

What's next?

The third Travel Ban is being challenged in multiple courts, including the US District Courts for the Districts of Maryland and Hawaii. Both courts enjoined its operation (links here and here). Those cases are currently on appeal to the Fourth and Ninth Circuit Courts of Appeal. The orders of the Supreme Court mean that the injunctions will not be in effect while those appeals progress.

Business Visas

With no Congressional action, the President issued another executive order on April 18, 2017: "Buy American, Hire American." The order outlined the administration's goal of managing US immigration programs with a priority toward protecting US workers and preventing fraud within the current immigration system. It resulted in heightened scrutiny of H-1B, L-1A/B, TN and O-1 visa petitions. For example, the number of requests for evidence on H-1B visa petitions for skilled workers shot up by 45 percent this year compared with the same period in 2016, per US Citizenship and Immigration Services (USCIS) statistics.

Another major business immigration shift came this summer, when USCIS announced that beginning on October 1, 2017, the agency would start to implement interviews for employment-based green card applicants. USCIS also rolled back guidance that required officers to give deference to previous decisions when it comes to requests for extensions of non-immigrant visa status. Lastly, USCIS began denying advance parole renewal requests filed by green card applicants if they left the US, which was a departure from previous years.  Click here to read what employers can expect from the interview process.

The Obama-era International Entrepreneur Rule ("IE Rule") was scheduled to go into effect on July 17, 2017; however, six days before it was set to take effect, the Trump Administration published its own rule delaying implementation until March 14, 2018. The Administration's rule indicated that it was likely going to rescind the IE Rule. The Administration was sued in US District Court for the District of Columbia, and the court ruled that the Trump Administration had implemented the delay without following the necessary Administrative Procedures Act (APA) Notice and Comment Period regulations, ordering the implementation of the IE Rule. Click here for further analysis.

What's next?

DHS announced on December 14, 2017 that it is taking steps to implement the IE Rule to comply with the court order. However, the agency simultaneously announced that it is in the final stages of drafting a notice of proposed rule-making to repeal the rule. The repeal of the IE rule can take several months, so it is unclear if anyone will be granted this discretionary admission in the meantime, and if granted, what that could mean to their admission to the US if the IE is eventually revoked.

US Embassies and the US Custom Border Protection (CBP) also were embolden by the EO, and began to use "extreme vetting" measures, and in some cases deny, foreign nationals attempting to be admitted to the US in a variety business visa categories. In some cases, "extreme vetting" resulted in foreign nationals with approved visa petitions to wait more 3 months of additional security checks to obtain a visa stamp to return back to the US to resume employment. Click here to read about the new vetting standards.

Unlike the travel ban, which resulted in a flurry of litigation and a lot of press, the business immigration policy changes were in most part under the radar but equally troubling to US employers who compete for and rely on global talent.

Worksite Enforcement and Raids

In 2017, USCIS released two versions of the Form I-9, Employment Eligibility Verification; the most recent one went into effect on September 18, 2017. An employer's failure to record a new hire's identity and employment authorization on the proper version of Form I-9 may be considered a substantive violation,which could subject an employer to civil fines ranging from $216 to $2,156 per employee. Click here for more details on the updated instructions.

Where we are today

In line with the Trump Administration's tough position on immigration, most employers have anticipated increased immigration-focused audits and enforcement actions. But we did not see a noticeable uptick during the first three quarters of 2017. We did, however, see a number of highly publicized raids, that resulted in many arrest of undocumented immigrants, who would have previously been ignored, in places where previously would have been avoided, like courthouses, hospitals, outside of shelters, etc.

What's next?

Due to the anticipated increase in worksite enforcement, it is critical that employers maintain accurate records of employee work authorization, including the I-9 and other documentation. In addition, employers should put into place policies regarding action to be taken by personnel in the event of a visit by law enforcement authorities. Our firm has significant experience in both areas and we are happy to assist with any compliance needs employers may have.

DACA Rescinded

Background

On June 15, 2012, President Obama issued an executive order that allowed young undocumented immigrants to remain legally in the country to attend school and work. This was referred to as Deferred Action for Childhood Arrivals, or DACA. Deferred action did not grant the applicants a lawful status, but it was the use of DHS's prosecutorial discretion to defer removal action against an individual for a certain period of time.

On September 5, 2017, President Trump rescinded the DACA program while giving Congress a 6 month window to save the policy. USCIS immediately stopped considering new applications for DACA, but allowed any DACA recipients who had a EAD set to expire before March 5, 2018, the opportunity to apply for a two-year renewal before October 5, 2017. Click here to read more.

What's next?

Since Congress failed to act before the holiday recess, it remains to be seen what will happen to those who registered under DACA since 2012. DHS claims that DACA registrants will not be an enforcement priority and that it will not proactively share individual information with ICE unless that person is considered an enforcement priority. Currently, it is our understanding that the enforcement priority criteria for DACA recipients would be people with a felony conviction, three or more non-traffic-related misdemeanors or one "significant" misdemeanor such as drunken driving or domestic violence or gang affiliation. However, DHS will have applicant information for each DACA registrant, so while they may not use that information today for deportation purposes, they may in the future.

Immediately, some DACA immigrants with expired EADs may not be able extend their driver's licenses in certain jurisdictions; may not be eligible for in-state tuition; and may not be able to travel abroad.

Record High ICE Arrests, but Not as Many Deportations

On January 25, 2017, the President also issued a second executive order, "Enhancing Public Safety in the Interior of the United States," which asked immigration agencies to review options for prioritizing the removal of unauthorized immigrants, and enforcing existing immigration laws. The order prioritizes deportation of immigrants who have been convicted of crimes, charged with a crime, done something that counts as a chargeable offense or even those who "in the judgment of an immigration officer" are a "risk to public safety or national security," among several other possible criteria.

This is in contrast to the removal guidance issued by the Obama administration in 2014, which placed immigrants convicted of felonies or crimes related to gang activity, as well as immigrants caught at the border, as the highest immigration enforcement priority, NOT non-criminal immigrants. The President replaced the Obama-era deportation guidelines with sweeping new standards, which significantly expanded the categories of people who are targets for removal. In the months following the order, across the country, the number of noncriminal arrests (FY 2017: 28,000) jumped significantly as well as the total number arrests by ICE increased by 43 percent from the year prior. The shift was seen in deportation numbers, which did not increase (FY 2017: 211,068; FY2016: 240,255), not for a lack of effort. It is speculated that because many of the arrests are being challenged in immigration court, which has a backlog of 600,000 cases, it may take years before those arrested under the new administration are ever deported.

In September 2017, the State Department also began to shift policy when it instructed embassies around the world that visitors who require a visa before entering the US must then follow through on their stated plans for at least three months, a departure from the previous 30 day policy. If the foreign national decides to do something different than what was stated on his or her application, such as marry an American citizen, go to school or get a job, it may be presumed that they have committed "willful misrepresentation." Changes of plans that occur after three months may still be problematic but are not presumed to be the result of "willful misrepresentation," the cable said. That would mean that it may be difficult, perhaps impossible, to renew visas or apply for a change of status, and those who find themselves in this situation may be subject to deportation or removal.

What's next?

Nevertheless, ICE will continue to target criminal immigrants, but the administration has made it clear that anyone in the country illegally is subject to an arrest.

* * *

In the last year we have seen many changes by the new Administration in connection to immigration programs and processes. Even without Congressional immigration reform, the impact to employers has been significant. We expect further impactful policy changes coming in 2018 that may affect the H-1B program, L-1 program, B-1 travel, as well as heightened scrutiny and investigations across the board. Stay tuned.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Nov 2018, Other, Boston, United States

Please join us on Wednesday, November 7 at the Westin Waltham Hotel for our quarterly New England M&A Forum, which brings the latest in market trends and recent legal developments to the New England M&A professionals' community.

13 Nov 2018, Webinar, Boston, United States

Social media platforms present countless opportunities for companies looking to connect to consumers and clients in real time.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions