In a 5-4 decision issued on Tuesday, June 26, 2018, the US Supreme Court upheld the president’s broad statutory authority to suspend the issuance of visas to nationals of certain countries in the interests of national security. Finding the September 24, 2017, Proclamation 9645 (“Proclamation”) to be neutral on its face, the Court rejected the arguments of the State of Hawaii that the ban was a thinly veiled attempt to ban Muslims from the United States in violation of the Establishment Clause of the US Constitution and the Immigration and Nationality Act (“INA”).

“By its plain language, [the INA] grants the president broad discretion to suspend the entry of aliens into the United States,” the majority opinion, authored by Chief Justice John Roberts, states. “The president lawfully exercised that discretion based on his findings—following a worldwide, multiagency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”

Continue Reading Supreme Court Upholds Trump’s Third Travel Ban

On Tuesday, June 19, 2018, President Donald Trump told House Republicans to send him a compromise immigration bill to address border security and other key issues. Within less than 24 hours, in a move designed to stave off the continued public outcry over the separation of children from migrant parents detained at the southern border, on June 20 the president signed an executive order, “Affording Congress an Opportunity to Address Family Separation.” The executive order states that officials will continue to prosecute everyone who crosses the border illegally but will find or build facilities to hold families together while the parents’ cases are considered by the courts.

Zero Tolerance Policy Reiterated

The president indicated the border will be “just as tough,” with borders “very strong,” but families will no longer be separated.   In a news conference where he was flanked by Vice President Mike Pence and Secretary of Homeland Security Kirstjen Nielsen, President Trump indicated, “We are keeping a very powerful border and it continues to be a zero tolerance.”  The executive order similarly reiterates the administration’s hard-line policy to detain any adults entering the country illegally, a policy that, according to statistics released on June 19, has led to the separation of more than 2,300 children from their parents.  As stated in the order:

Continue Reading President Trump Signs Executive Order to End Migrant Family Separation by Indefinitely Detaining Parents and Children Together at the Border

The Court of Justice of the European Union (ECJ) has ruled that spouses of the same sex are covered under the EU law providing for freedom of residence to EU citizens and their family. In a June 5, 2018 Press Release, the ECJ explains “[a]lthough the Member States have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.”

The ECJ’s judgment arises from a case brought by a Romanian national who was unsuccessful in securing residency rights in Romania (which does not legally recognize same-sex marriage) for his same-sex spouse, a US citizen whom he had married in Brussels. The residency request was based on an EU Directive guaranteeing the freedom of movement and residence to EU citizens and their families; this EU directive allows the non-EU “spouse” of an EU citizen to join his or her EU spouse in the member state in which the EU spouse is living. The couple brought an action before the Romanian courts, which then asked the ECJ to decide whether a same-sex spouse may be regarded as the “spouse” of an EU citizen under the freedom of movement directive. In its June 5 press release, the ECJ states that “in the directive on the exercise of freedom of movement the term ‘spouse,’ which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen.”

On May 10, 2018, USCIS issued a Policy Memorandum entitled “Accrual of Unlawful Presence and f, J, and M Nonimmigrants,” providing new guidance to USCIS officers in the calculation of unlawful presence of students, vocational students, and exchange visitors who remain in the US beyond their authorized period of stay. The Memo is a departure from policy guidance put in place more than 20 years ago.  To make sense of the new policy, Forbes turned to Mayer Brown’s Paul Virtue, who, in 1997, authored the “Virtue Memo” when he served as Executive Associate Commissioner for Programs of the Immigration and Naturalization Service (INS).  The Virtue Memo established the government’s interpretation of unlawful presence which has been adopted and applied ever since.  The new Memo reinterprets how USCIS officials should calculate unlawful presence for F-1, J-1, and M visa holders, as well as their dependent family members.

Read the article.

 

Mayer Brown counsel Lisa Pino was quoted in an article featured in The California Lawyer Daily Journal discussing the uptick in Immigration and Customs Enforcement (“ICE”) worksite investigations, which have doubled since October 2017.  This increase aligns with the Trump Administration’s immigration policy priorities, published in late 2017, to hire 10,000 more ICE officers and 300 Federal prosecutors.  Pino advises employers to focus on compliance, mitigate risk, and adopt best practices to better manage the  immigration needs for their workforce.

Read the article.


In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s.  These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).

Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status.  Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States.   The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”

Continue Reading USCIS Changes Policies on Unlawful Presence Calculation and Worksite Location Requirements for Foreign Students

An article in Law360 outlines the key items addressed in the Trump administration’s spring 2018 regulatory agenda, which was made available to the public in early May 2018.  Topics on the list include structural changes to the Executive Office for Immigration Review, the office within the US Department of Justice that oversees US immigration courts; changes to the EB-5 investor visa program, including increasing the minimum investment amount from $500,000 to $1.35 million; and rescission of the International Entrepreneur Rule (“IER”), a program implemented during the Obama administration to grant parole to entrepreneurs seeking to establish and build startup businesses in the United States.

The article can be read here.

 

The Texas Attorney General, joined by six other states, filed suit against the federal government yesterday to terminate the Deferred Action for Childhood Arrivals (DACA) program on the basis that DACA derives from an executive overreach by President Obama in 2012. The suit was filed in the Fifth Circuit in Brownsville, Texas, where a November 2015 decision overruled President Obama’s plans to protect more than 4 million individuals from deportation.

The lawsuit further complicates the fate of DACA recipients, also known as Dreamers, as other district court rulings remain active. Most recently, a  Washington, DC district judge ordered that DACA renewal applications should continue, and that new applicants may be eligible to apply if the federal government fails to justify within 90 days why DACA should cease altogether.

Continue Reading Texas and Six States Sue to Abolish DACA

On April 24, 2018, Judge John D. Bates of the Federal District Court for the District of Columbia ruled against the Trump Administration’s “unlawful” rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Arguing that the decision to end DACA was “arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful,” Judge Bates stayed his decision for 90 days to offer the Department of Homeland Security (“DHS”) the opportunity to provide sound justification for terminating the program.

Should DHS fail to adequately address its reasoning for canceling the DACA program within the timeframe, the government will be ordered to once again accept and process new and renewal DACA applications for eligible applicants.

Read the decision.

On Wednesday, April 25, 2018, the US Supreme Court will hear argument in Trump v. Hawaii. Mayer Brown’s Legal Update provides background on this challenge to the third in a series of travel bans issued by President Trump and summarizes the questions before the Court in this final oral argument of its current term.