Explaining Trump’s Executive Order on Family Separation

 

WASHINGTON — President Trump on Wednesday sought to quell the uproar over his administration’s systematic separation of immigrant children from their families at the border, signing an executive order he portrayed as ending the problem.

What caused the problem?

Previously, many families caught sneaking across the border — especially those seeking asylum — were released into the United States while their immigration cases were processed. But in April, Attorney General Jeff Sessions announced that federal prosecutors would now pursue a zero-tolerance policy of criminally prosecuting every adult who illegally crossed the border or tried to do so.

Sending adults to jail for prosecution prompted a set of court-imposed rules stemming from a class-action lawsuit over how the government handled unaccompanied minors in immigration detention. In the Trump administration’s view, the government cannot hold children in immigration detention for over 20 days.

That meant that if adults were sent to jail or long-term indefinite detention while their asylum requests or removal orders were processed, the children could not stay with them. As a result, the Trump policy of prosecuting adults has also led to a practice of separating families and holding children separately while trying to place them with relatives or in a licensed facility.

Courtesy NY Times

Thousands of immigrants could benefit from Supreme Court ruling

A Supreme Court ruling on immigration this week is igniting a new political battle over federal officials’ power to deport foreigners who have been convicted of certain crimes.

The White House and the nation’s top immigration official said the 5-to-4 ruling will make it harder for the Trump administration to deport people convicted of some sexual offenses and kidnapping crimes, as well as burglary in some states, among other offenses.

“It is yet another example of the need for Congress to urgently close the loopholes that allow criminal aliens to avoid removal and remain in the United States,” Thomas Homan, acting director of U.S. Immigration and Customs Enforcement, said in a statement.

But immigration lawyers countered that the federal law makes clear that foreigners convicted of murder, rape and other violent offenses can be deported.

They say the ruling offers important protections to immigrants whom the Department of Homeland Security has portrayed as “aggravated felons” based on a broad and vaguely defined category called “crimes of violence,” which may not have resulted in physical harm.

Boston lawyer Matt Cameron said he is aware of “dozens” of immigrants who might be spared from deportation or be allowed to apply for U.S. citizenship because of the ruling.

Among them is a Salvadoran man who grabbed a baseball bat to defend himself after he was followed home by a gang of white men hurling racial slurs at him and then was convicted of a crime. Another, he said, is a man from Cambodia who pleaded guilty to participating in a bar fight, even though he hid in the bathroom.

In all, thousands of immigrants could be affected, immigration lawyers say, particularly green-card holders, who are lawful permanent residents on a path to U.S. citizenship. But they say the decision could also aid undocumented immigrants, who, depending on the severity of their crime, may now have a chance to plead their case to stay.

The Supreme Court ruling involved James Dimaya, a green-card holder from the Philippines who has lived in the United States since 1992. He was convicted of home burglaries in 2007 and 2009.

The immigration courts stripped him of his green card and ordered him deported, concluding that in California, first-degree burglary is tantamount to a “crime of violence.”

Conservative Justice Neil M. Gorsuch, who was nominated by President Trump, joined four liberal colleagues in saying the statute was too vague for the immigration courts to reach that conclusion. They said the Immigration and Nationality Act lists many crimes, such as murder, rape and sexual abuse of a minor, as “aggravated felonies” that require deportation, and that will not change.

The majority explained that Dimaya’s burglaries fell into a too-broad miscellaneous category called “crimes of violence” designed to catch other crimes not on the law’s list, and defined as involving “a substantial risk [of] physical force against the person or property of another.”

 It is up to the immigration courts and the Board of Immigration Appeals, which are part of the U.S. Department of Justice, to determine if those crimes should be considered aggravated felonies that make an immigrant eligible for deportation.

Gorsuch said that meant everyone from “armed home intruders to door-to-door salesmen peddling shady products” could be classified as meeting the “crime of violence” definition.

“How, on that vast spectrum, is anyone supposed to . . . say whether it includes a substantial risk of physical force?” he wrote in his decision. “The truth is, no one knows.”

E. Joshua Rosenkranz, Dimaya’s lawyer, said his client never physically hurt anyone during the break-ins, adding that the court’s decision does not preclude violent felons — whom Trump has referred to as “bad hombres” — from being deported.

“It’s the hombres that have lived generally law-abiding lives but for what is often a youthful lapse that are protected by this decision,” Rosenkranz said.

Trump administration officials disagreed, saying that the court ruling means that burglary in many states, drug trafficking in Florida and sexual abuse of a minor in New Jersey will no longer be considered aggravated felonies.

“Unless Congress acts, the United States Government will be unable to remove from our communities many noncitizens convicted of violent felonies, including in some cases domestic assault and battery, burglary, and child abuse,” White House press secretary Sarah Huckabee Sanders said in a statement.

Dale L. Wilcox, executive director and general counsel for the Immigration Reform Law Institute, which favors less immigration, noted that government attempts to deport Dimaya began when President Barack Obama was in office.

“Lost in the debate over the meaning of ‘crime of violence’ is the fact that Dimaya was convicted twice of first-degree burglary under California state law and is now allowed to remain in the United States,” Wilcox said in a statement.

Courtesy: Washington Post

 

US CIS Memo on H1B Workers Placed Offsite

On February 22, 2018, the United States Citizenship and Immigration Services (USCIS) released a policy memorandum entitled Contracts and Itineraries Requirements for H1B Petitions Involving Third-Party Worksites. This policy memo revises USCIS policy related to H1B petitions filed for workers who will be employed at one or more third-party or end-client worksites. The memo specifically focuses on staffing companies that use the petitioner – vendor – client relationship, which is common in the information technology industry. When placing an employee at a third-party work location, the petitioner must demonstrate that there is specific and non-speculative work in a specialty occupation for the beneficiary for the entire period requested in the petition.

Although the policy memo acknowledges that end-client work arrangements may be a legitimate and widely used business model, the USCIS states that employer violations, including underpaying H1B workers and having employees work in non-specialty occupation jobs, are more likely to occur when the H1B worker is placed at a third-party worksite. In order to combat these perceived abuses, the USCIS issued this policy memo to clarify how an employer can show that end-client work arrangements are legitimate and non-speculative.

Contracts are Persuasive Evidence in Establishing Work Arrangements

The memo focuses on an employer’s ability to show that a “non-speculative qualifying assignment” will exist for the requested validity period in the form I-129 petition. An H1B petition does not establish a worker’s eligibility for H1B classification if it is based on speculative employment or fails to specifically detail the actual specialty work the H1B beneficiary will perform at the third-party worksite. It is the petitioner’s burden to show that specialty occupation work exists for the beneficiary by submitting corroborating evidence, such as a signed contract, a work order or letter signed by an authorized official of the end-client company, or other documentation establishing the type of work and the duration of work. According to the policy memo, if the petitioning employer does not submit corroborating evidence or otherwise demonstrate that there is a specific work assignment for the H1B beneficiary, the USCIS is likely to deny the petition.

Itinerary as a Regulatory Requirement

When an H1B employee will be placed at more than one physical work location, an itinerary must be submitted. The policy memo states that, if the beneficiary will be working in more than one location, dates of service must be included in the itinerary. According to the policy memo, failure to provide an itinerary required by regulation could result in denial of the petition without a request for evidence (RFE) being issued.

The memo also states that a more detailed itinerary could help to demonstrate that the petitioner has non-speculative employment, even when the beneficiary will only be working at one third-party worksite. Although an itinerary is not legally required if there is only one worksite, the policy memo suggests that including one with exact dates and locations could help demonstrate the existence of specific and non-speculative specialty work.

A Change in Extension Policy

The memo ends with language related to extensions of status for H1B workers who have been employed at third-party work locations. If an employer is applying to extend status for an H1B worker who was previously placed at a third-party worksite, the petitioner may need to prove that the H1B worker maintained status for the entire H1B period. This could be accomplished by providing evidence of the prior project and proof that the required wage for the prior approved H1B petition was paid at all times. If the petitioner cannot demonstrate compliance, the petition may be approved, but only for consular processing (i.e. without an I-94 card granting the extension). This section of the memo drives home the importance of filing an amendment for an H1B employee before the new work is started if there is any material change in employment, including any move to a new client.