2017 Immigration News: Enforcement, Vetting, and a Ray of Hope. 2017 was a year packed with Immigration News. Donald Trump made immigration a major focus of his first year in office, pushing for a border wall even if Mexico doesn’t pay for it as he’d stated during his campaign, issuing instructions to the Department of Homeland Security to implement measures to restrict legal immigration, step up enforcement measures at the border and the interior against all undocumented immigrants, and directing the Department of State and DHS to more rigorously vet visa applicants and others applying for U.S. immigration benefits.
President Trump issued multiple executive orders within the first few months of his presidency to put these changes in motion. While some of the changes have been the subject of litigation (such as his “Travel Ban” or “Muslim Ban”), other changes have been implemented with no legal challenges. As we finish out 2017, here is a summary of some of these changes:
Restriction of Legal Immigration
During his presidential campaign, Mr. Trump repeatedly stated that immigrants needed to come to the United States legally.
However, after taking office, his executive orders and the actions of the Department of Homeland Security showed a shift toward limiting even legal immigration and adding additional steps to the legal immigration process. His support of the RAISE Act was one example of this stance.
In April, Mr. Trump signed the Buy American, Hire American executive order, which included directions to the Secretaries of State, Homeland Security, and Labor to make new rules and issue new guidance to protect the interests of United States workers. However, Buy American, Hire American (BAHA) did not include specific ideas or actions to be taken. One of the more specific proposals in BAHA directs agencies to try to reform the H-1B visa process so that only the “most-skilled or highest-paid petition beneficiaries” were approved.
As a result of BAHA, there has been a significant increase in the number of Requests for Evidence (RFEs) from U.S. Citizenship and Immigration Services (USCIS). On the basis of data provided by USCIS, Reuters concluded that between January 1 and August 31, 2017, the agency issued 85,000 RFEs on H-1B petitions, which is a 45 percent increase over the same period last year. The number of actual H-1B petition filings increased less than 3 percent during that same period. Although BAHA did not specifically reference L, O, P and E visas, the State Department made changes its field manual to provide revised guidance to consular officers on the issuance of L, O, P and E visas as well.
USCIS also announced that it will be requiring all employment-based applicants for permanent residence to attend an interview before their applications may be approved. While this additional step sounds relatively simple, USCIS officers at local offices are not trained on eligibility for permanent residence based on employment. Although officers interviewing for permanent residence have no authority to review an applicant’s approved employment-based petition, some officers have attempted to re-adjudicate these cases or have requested additional information and documents from applicants.
Mr. Trump had indicating during his presidential campaign that he believed applicants for visas and other benefits, particularly those from Middle Eastern countries, should be subject to “extreme vetting.”
During his first month in office, Mr. Trump’s administration introduced a Travel Ban aimed at preventing the entry of individuals from a handful of countries deemed to be a threat to the United States. The Travel Ban was enjoined by federal courts, and a revised “Travel Ban 2.0” was introduced. This has also been enjoined by some federal courts, and the Supreme Court recently allowed the latest version of the travel ban to take effect while appeals are pending in federal appeals courts.
The Department of State (DOS) also introduced new policies that have increased scrutiny of visa applicants. DOS introduced its new 90-day rule, which states that Consular Officers will look for behavior inconsistent with the purpose of a person’s visa in the 90 days after their entry when deciding whether to issue a new visa to a person. If inconsistent behavior is found to have taken place, consular officers may refuse to issue a visa due to misrepresentation of the applicant’s intent when entering the United States during previous trips.
DOS also introduced the Form DS-5535, which will be required of applicants where DOS officials believe additional information is needed to help resolve the applicant’s identity or to vet the person for issues involving terrorism or threats to U.S. national security or identifying other reasons the person may be ineligible for a visa. The DS-5535 was originally implemented for a temporary period of a few months, but DOS has now requested authorization to use it for the next three years.
Stepped up enforcement
During the course of his presidential campaign, Mr. Trump established that building a border wall was the cornerstone of his administration. He also stated that all undocumented immigrants would need to leave, regardless of their equities in the United States. His statements did not take into account the direct and indirect costs of these measures.
In the first two months of his presidency, Mr. Trump introduced multiple executive orders aimed at increased personnel along the U.S.-Mexico border and more stringent enforcement of immigration laws. In these orders, Mr. Trump broadly expanded the ground of immigrants who would be targeted for detention and removal.
Under the Obama Administration, immigrants who were considered “enforcement priorities” were mainly those with criminal records and those subject to deportation orders that had yet to be executed. Mr. Trump defined “enforcement priority” as anyone who had made any kind of false statement or violated any United States law, which included anyone who obtained a false ID or worked without authorization – basically any undocumented immigrant could be considered an enforcement priority.
As the months passed, immigration lawyers and advocates began to see ICE agents appearing in criminal court and family court in attempts to arrest undocumented immigrants in the process of handling criminal cases or modifying child support orders. We also began to see Notices to Appear in immigration court issued to conditional residents who failed to file timely petitions to remove conditions on their residence few days late. ICE agents also began to appear outside homes in an attempt to arrest undocumented immigrants, regardless of whether the individuals had any kind of criminal history or were subject to a deportation order.
Worried About ICE Coming to Your Home?
As part of this increase in enforcement, we also saw many individuals who were subject to deportation orders and were on orders of supervision which allowed them to report to ICE periodically be arrested and removed from the United States. Seeing this trend, we made it a priority to assist anyone with a deportation order in reopening their case before the immigration court.
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Our Ray of Hope at the End of the Year
Over the course of 2017, we saw the policy changes described above go into effect. We noted that USCIS seemed to take actions not seen before, including alleging fraud or wrongdoing in unexpected situations, frequently denying discretionary requests, and issuing more requests for evidence, notices of intent to deny, and notices of intent to revoke than usual. We saw ICE take more sweeping measures to detain individuals, and in court, ICE attorneys have opposed most requests for prosecutorial discretion.
In the midst of all of the changes in 2017, our office was proud to end 2017 with a very special win in immigration court. We began working with our client, Robert, in 2015. He had been a permanent resident since 1989, when he was a young teenager. In 2005, he was charged with possession of a controlled substance and pled guilty. As a permanent resident with a U.S. citizen spouse and five children, he was ordered deported back to _______.
Soon thereafter, he presented himself back at the border and was allowed in, likely by mistake – a mistake that would not occur nowadays. After reuniting with his family, he learned that laws pertaining to permanent residents with controlled substance offenses had changed. Because his deportation order remained in place, he and his wife approached several attorneys for help reopening his case. Some refused to take his case, and others said that a motion for the court to reopen his deportation case could be filed, but it was likely to be denied.
We successfully reopened Robert’s immigration court case in 2016, however it meant that we had to start over in arguing why he deserved a chance to keep his green card and remain in the country with his family. This month we argued Robert’s case in the Houston Immigration Court. After three or four hours of arguments and testimony, the immigration judge granted Robert’s case and allowed him to keep his green card and remain in the United States.
Lots of time and effort has been invested in Robert’s immigration case – it took us a little over two years from the time we first met him and his wife, to winning his case. The entire time we worked with him, Robert was at risk of being detained. As we prepared for his immigration court hearing, we knew that nothing was guaranteed, and we could only do our best. Even if we won, the government could appeal the judge’s decision. When we won his case, Robert told us that he had been told his situation was impossible, and as a result, he remained in the shadows for years hoping for something to change. The win lifted a huge weight off his and his family’s shoulders.
When I first opened our office in 2013, I had a keen interest in helping clients through challenging and difficult situations. Robert’s case is one of many examples of the type of challenging cases we handled successfully. With all the changes we saw during the past year, we know there will be even more challenges ahead. But as Robert’s case shows, there is still hope, and there is still the opportunity to achieve our client’s goals. In 2018, we will continue our mission to help our clients pursue their immigration goals.