U.S. Immigration law and policy under the trump administration

U.S. IMMIGRATION SYSTEM BEFORE TRUMP NON-IMMIGRANT CATEGORIES A variety of categories each depending upon purpose of travel (visitor for business/pleasure, student, temporary employment, exchange visitor, journalist, athlete, investor, inter-company transferee, etc. (the “Alphabet Soup”); Document requirements and application procedures vary depending on the category (proof of non-immigrant intent); Limits to visas depend upon category (ex. H-1B visas (“specialty occupation”) worldwide limit of 65,000 for persons with bachelor degrees, plus 20,000 for persons with advanced degrees).

U.S. IMMIGRATION SYSTEM BEFORE TRUMP II. IMMIGRANT VISA CATEGORIES A. FAMILY-BASED IMMIGRANT CATEGORIES a. Unlimited number of visas for immediate relatives of U.S. Citizens (spouses, unmarried children under 21, parents); b. Limited number* of visas for adult children (over 21) and siblings of U.S. Citizens; c. Limited number* of visas for spouses and all children (minor or adult) of Legal Permanent Residents (“LPRs”). * Numbers are limited to 480,000 for all categories with the floor of at least 226,000 for categories enumerated in b) and c). ** U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States.

August 2017 Visa Bulletin – Family-Based Categories Family- Sponsored  All Chargeability  Areas Except Those Listed CHINA- mainland  born INDIA MEXICO PHILIPPINES  F1 22JUL11 01APR96 08SEP07 F2A 08APR16 08APR16  F2B 01SEP11 08AUG96 22JUL07 F3 01DEC05 01MAY95 01FEB95 F4 15NOV04 22JUN04 08JAN98 08FEB95

September 2017 Visa Bulletin – Family-Based Categories Family- Sponsored  All Chargeability  Areas Except Those Listed CHINA-mainland  born INDIA MEXICO PHILIPPINES  F1 01MAY10 01FEB96 01JAN07 F2A 01OCT15 22SEP15 F2B 01NOV10 01NOV10  01JUL96 F3 08JUL05 08APR95  15FEB95 F4 01JAN02 15SEP97 01JUN94

U.S. IMMIGRATION SYSTEM BEFORE TRUMP II. IMMIGRANT VISA CATEGORIES B. EMPLOYMENT-BASED IMMIGRANT CATEGORIES a. Certain temporary employment-based non-immigrant visa categories may lead to obtaining an immigrant status (e.g., visas such as H-1B, O-1, L-1); b. There are 5 preference-based categories w/ 140,000 total visas available (includes family members): EB-1 – persons of “extraordinary ability” (40,000 visas); EB-2 – members of professions w/advanced degrees or persons w/exceptional abilities (40,000 visas); EB-3 – skilled workers w/at least 2 years of experience, a college degree, or “other” workers (40,000 visas); EB-4 – certain “special immigrants” such as religious workers, employees of U.S. foreign posts (10,000 visas); EB-5 – persons who will invest at least $1.0 million into an enterprise that employs at least 10 U.S. workers (or $500,000 if invest into an economically depressed area) (10,000 visas). * In addition to numerical limitations, INA places limits on how many immigrants may come from any one particular country so as to not exceed 7% of the total number of people immigrating to the U.S. in any fiscal year. ** Employer must petition for the particular EB category and prove employee skill level, wage level, among other requirements.

August 2017 Visa Bulletin – Employment-Based Categories All Charge- ability  Areas Except Those Listed CHINA- mainland  born EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES 1st C 01JAN12 2nd 01APR15  22APR13 01APR15 22JUL08 3rd 15JUL06  C  01JUN15 Other Workers 01JAN04 15JUL06 4th 15SEP15  15SEP15 Certain Religious Workers 5th Non-Regional Center (C5 and T5) 15JUN14 5th Regional Center (I5 and R5)

September 2017 Visa Bulletin – Employment-Based Categories All Charge- ability  Areas Except Those Listed CHINA- mainland  born EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES 1st C 01JAN12 2nd 01JAN16  15MAY13 01JAN16 22AUG08 3rd 15OCT06  C  01NOV15 Other Workers 01JAN04 15OCT06 4th 22OCT15  22OCT15 Certain Religious Workers 5th Non-Regional Center (C5 and T5) 15JUN14 5th Regional Center (I5 and R5)

U.S. IMMIGRATION SYSTEM BEFORE TRUMP II. IMMIGRANT VISA CATEGORIES C. REFUGEES AND ASYLEES Refugees – Admitted to the United States based upon inability to return to home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin; Apply from abroad, generally from a “transition country”; Admission depends on numerous factors, such as degree of risk faced by refugee, membership in a group that is of concern to the U.S., family members in the U.S; Numerical ceiling set by President, in consultation with Congress. In FY 2016, the ceiling was set at 85,000 (with regional allocations of this total). In FY 2017, the initial ceiling was 110,000.

U.S. IMMIGRATION SYSTEM BEFORE TRUMP II. IMMIGRANT VISA CATEGORIES C. REFUGEES AND ASYLEES (continued) Asylees – Persons already in the U.S. who are seeking protection based on the same five protected grounds upon which refugees rely; Asylees may apply at a port of entry at the time they seek admission or within one year of arriving in the United States; There is no limit on the number of individuals who may be granted asylum in a given year. *Refugees and asylees are eligible to become LPRs one year after admission to the United States as a refugee or one year after receiving asylum.

U.S. IMMIGRATION SYSTEM BEFORE TRUMP II. IMMIGRANT VISA CATEGORIES D. THE DIVERSITY VISA PROGRAM a. Created by the Immigration Act of 1990 as a dedicated channel for immigrants from countries with low rates of immigration to the United States; b. Each year 55,000 visas are allocated randomly to nationals from countries that have sent less than 50,000 immigrants to the United States in the previous 5 years; c. The program has become one of the only avenues for individuals from certain regions in the world to secure a green card; d. Eligibility: at least a high-school education (or its equivalent) or, within the past five years, a minimum of two years working in a profession requiring at least two years of training or experience.

U.S. IMMIGRATION SYSTEM BEFORE TRUMP III. OTHER FORMS OF HUMANTIARIAN RELIEF A. Temporary Protected Status (TPS) - granted to people who are in the United States but cannot return to their home country because of “natural disaster,” “extraordinary temporary conditions,” or “ongoing armed conflict.” TPS is granted for a limited amount of time and can be extended if unsafe conditions in the country persist. TPS has traditionally not led to LPR status, but see Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), where the courts held that a grant of TPS constitutes an “admission” for purposes of adjustment of status under the INA. B. Deferred Enforced Departure (DED) - protection from deportation for individuals whose home countries are unstable, therefore making return dangerous. Unlike TPS, which is authorized by statute, DED is at the discretion of the executive branch. DED does not lead to LPR status or confer any other immigration status. 

U.S. IMMIGRATION SYSTEM BEFORE TRUMP III. OTHER FORMS OF HUMANTIARIAN RELIEF (continued) C. Deferred Action for Childhood Arrivals (DACA) - prosecutorial discretion aimed to defer removal of certain people who came to the United States as children, meet certain guidelines*, which make them eligible to request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action does not provide lawful status. *Guidelines: - Applicant was under the age of 31 as of June 15, 2012 and came to the United States before reaching their 16th birthday; - Applicant has continuously resided in the United States since June 15, 2007, up to the present time and was physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; - Applicant had no lawful status on June 15, 2012; - Applicant is currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate; and - Applicant has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

U.S. IMMIGRATION SYSTEM BEFORE TRUMP IV. NATURALIZATION - to qualify, applicant must have had LPR status (a “green card”) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). Other exceptions include, but are not limited to, members of the U.S. military who serve in a time of war or declared hostilities. Applicants must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams (with certain exceptions), and pay an application fee, among other requirements.

ISSUES: Inflexibility of the system/inability to adjust to market or workforce demands (e.g., insufficient variety of categories to address certain economic demands such as start-up entrepreneurs/investors of smaller capital from countries that do not have a treaty relationship with the United States); Decades of separation of family members; Lack of solution regarding undocumented aliens.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION TRAVEL BAN AND REFUGEE RESETTLEMENT Executive Order 13759: Protecting the Nation from Foreign Terrorist Entry into the United States (signed Jan 27, 2017) Suspension of entries of citizens from Iran, Iraq, Syria, Sudan, Yemen, Libya, Somalia; “Extreme vetting” – calls for development of more rigorous screening procedures; Suspension of refugee resettlement program, decrease of ceiling, indefinitely halt entry of Syrian refugees, upon reinstatement of program, prioritize applicants who are persecuted on the basis of religious beliefs and are a religious minority in their country of nationality. Developments: various courts enjoined part of the EO. President rescinded and replaced the EO with another version.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION TRAVEL BAN AND REFUGEE RESETTLEMENT (continued) b. Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States (signed Mar 6, 2017) Restricts entries of citizens from Iran, Syria, Sudan, Yemen, Libya, Somalia, unless they are LPRs or had valid visas for entry as of Jan 27, 2017, or receive a case-by-case waiver; “Extreme vetting” – calls for development of more rigorous screening procedures; Suspension of refugee resettlement program, decrease of ceiling, no prioritization requirement based on religious beliefs. Developments: Enjoined by two district courts (HI and MD), which was appealed to the 4th and 9th Circuits. Each of the Courts heard oral arguments in May and each affirmed a substantial part of the District Courts’ rulings as to the issuance of the preliminary injunction. SCOTUS granted certiorari, consolidated the 4th and 9th Circuit cases, and ruled that the travel and refugee bans “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship” with a U.S. person or entity. HI filed an emergency motion to clarify the scope of the preliminary injunction; the District Court issued an order modifying preliminary injunction; government appealed; SCOTUS issued an order staying the District Court’s modification with respect to refugees .

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION TRAVEL BAN AND REFUGEE RESETTLEMENT (continued) c. Proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats” (issued on Sep 24, 2017) Imposes new country-specific travel restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen; Nationals of Iraq are subject to extra screening measures; SCOTUS cancelled oral arguments in Trump v. IRAP and Trump v. HI, originally scheduled for October 10, 2017, and directed the parties to file briefs by October 5, 2017, addressing whether or to what extent, the Proclamation may render the previous order moot.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION II. EMPLOYMENT-BASED IMMIGRATION Executive Order: Buy American and Hire American (signed Apr 18, 2017) The "Hire American" portion of the order targets the H-1B visa program, which allows businesses to hire high-skilled workers from outside the U.S. The "Buy American" portion of the order directs agencies to tighten rules that give priority to U.S. companies when hiring contractors or purchasing goods. This would be done by reducing the use of waivers and exceptions to current laws. Developments: USCIS received over 199,000 H-1B applications and for the 5th year in a row will consider the applications through a computer-generated lottery. The order does not address the issue faced by the U.S. employers: need for highly skilled workers, especially in the computer/mathematical fields.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION III. FAMILY AND EMPLOYMENT-BASED IMMIGRATION Reforming American Immigration for Strong Economy (“RAISE”) Act - endorsed by Trump and Republican Sens. Tom Cotton (Ark.) and David Perdue (Ga.)  Aims to create a “merit-based” immigration system that would put a greater emphasis on the job skills of foreigners over their ties to family in the United States; Eliminates the Diversity Visa Lottery Program; Caps annual admission of refugees at 50,000; Changes definition of child to 18 years old or younger and removes parents and siblings from the immediate relative category; Caps family-based admissions at 88,000 per year; Eliminates categories for unmarried and married sons and daughters of USCs and unmarried sons and daughters of LPRs.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION III. FAMILY AND EMPLOYMENT-BASED IMMIGRATION Reforming American Immigration for Strong Economy (“RAISE”) Act - endorsed by Trump and Republican Sens. Tom Cotton (Ark.) and David Perdue (Ga.) (continued) Creates a points-based immigration system for employment-based categories; Applicants must attain at least 30 points to apply; Applications are sorted by points; USCIS invites applicants for interviews; Applicants stay in the pool for 12 months; if not invited to apply, then can reapply; If invited for interview, submit required documentation; Applicants ineligible for public benefits.

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION III. FAMILY AND EMPLOYMENT-BASED IMMIGRATION Reforming American Immigration for Strong Economy (“RAISE”) Act - endorsed by Trump and Republican Sens. Tom Cotton (Ark.) and David Perdue (Ga.) (continued) The Test: Age; Highest level of education; English ability; Job offer; Nobel Prize or major international award; Olympic medal; Investment in the United States. http://time.com/4887574/trump-raise-act-immigration/

SUMMARY OF SEVERAL MAJOR ACTIONS TAKEN BY THE TRUMP ADMINISTRATION OTHER CHANGES Rescission of DACA Rescinded on September 5, 2017; Affects approximately 800,000 Dreamers; Current DACA recipients can keep their work authorization and deferred action grants until they expire; USCIS will reject any initial DACA requests received after September 5, 2017; USCIS will adjudicate renewal DACA applications and associated applications for work authorization that have been accepted by USCIS as of September 5, 2017; DHS generally will honor the validity period for previously approved applications for advance parole; On September 5, 2017, DHS stated that “[i]nformation provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance; This is a change from the previous policy, which stated: “[i]nformation provided in [a] request is protected from disclosure to ICE and CBP…”

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