The Travel Ban on Refugees vs. International Law

June 26th, 2017

Having set the rhetorical bar high during his campaign, President Trump has taken several steps attempting to make good on his promise to restrict immigration. Arguably, the most controversial of those – “The Wall” notwithstanding – is his executive order to ban U.S. entry to travelers, including refugees, from six Muslim-majority nations: Yemen, Syria, Sudan, Somalia, Iran and Libya.

The ban for travelers would be in effect for 90 days – 120 days for refugees – while the government reviews possible improvements in vetting procedures. Immigrants from these six counties working in the U.S. under H-1B visas need not worry about deportation — or the travel ban — though immigration lawyers advise against leaving the country until the conditions of the ban are changed or lifted entirely.

Since announcing the order, the 4th U.S. Circuit Court of Appeals invoked a freeze on the ban – deeming it discriminatory – and the decision was upheld by the 9th Circuit Court. Now, the Trump administration has asked the U.S. Supreme Court to allow the ban to go into effect.

While this life-and-death refugee drama continues to play out domestically, the proposed ban may well face another problematic challenge: it appears to violate several international treaties ratified by the United States. Following the massive displacement of populations as the result of World War II, the Refugee Convention of 1951 was ratified by 145 State parties, defining the term “refugee” as well as the legal obligations of States to protect them.

Further, the 1967 Protocol Relating to the Status of Refugees, an update to the Refugee Convention, prohibited discrimination on the basis of race, religion or national origin. Some of the provisions of these agreements have even been incorporated into U.S. law and cited as binding by the United States Supreme Court.

Steffen Seibert, spokesperson for German Chancellor Angela Merkel, said in a statement, “The Geneva Refugee Convention requires the international community to take in war refugees on humanitarian grounds. All signatory states are obligated to do (so)…She (Merkel) is convinced that the necessary, decisive battle against terrorism does not justify a general suspicion against people of a certain origin or a certain religion.”

Meanwhile, ironically, the executive order cannot displace domestic legal obligations. So those who do manage to reach U.S. soil claiming asylum will have to have their claims examined. The duty not to return a person to a state where they may face torture or other serious harm is absolute under the UN’s Convention Against Torture – which the United States has signed and ratified.

Of course, the question of whether the ban violates international law will only come into play should the Supreme Court decide in favor of the administration. Then, if Trump forges ahead, will the international community attempt to “punish” the U.S. or, if unwilling to do so, will they make plans to increase their own refugee resettlement programs?

Only time will tell.

Comment » | Department of Homeland Security

USCIS Announces Suspension of H-1B Premium Processing

March 5th, 2017

What Happened?

On March 3, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.

USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.

Why Did USCIS Make This Surprise Announcement?

According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.

Are There Any Exceptions?

During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

In our experience, expedite requests are rarely granted.

What Is The Practical Impact For Companies and H-1B Employees Who Need Extensions in 2017?

Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. Lengthy H-1B processing times during the unavailability of premium processing will present the following significant challenges:

  • Many H-1B employees will lose the ability to travel for business or pleasure because they will be unable to obtain a new visa to reenter the U.S. without an extension approval notice;
  • H-1B employees and their H-4 spouses may be unable to renew driver’s licenses;
  • H-1B employees seeking to change employers will either have to resign their current position and “port” to the new employer using the filing fee receipt from the new employer’s H-1B petition (without the certainty of an approved petition) or wait many months for the new employer’s petition to be approved.

Zulkie Partners will be working closely with clients to minimize the disruption caused by the sudden policy shift at USCIS.

Comment » | Department of Homeland Security, H-1B

Cities and States Respond to Trump’s Immigration Plan

December 22nd, 2016

Throughout his presidential campaign, Donald Trump spoke on a platform of intensive immigration reform. His proposed immigration plan includes ending President Obama’s executive actions, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). He is also proposing biometric visa tracking systems in all land, air and sea ports, and, of course, the wall.

Trump stated he’d cut federal funding to sanctuary cities in his first 100 days in office. In these cities — at least 130 of them, according to the Immigrant Legal Resource Center — local law enforcement agencies limit their interaction with federal immigration enforcement agents. Since his statement, officials from at least 37 of these cities said they would remain sanctuary cities for immigrant populations.

 Sanctuary cities across the country are stepping up protections for their undocumented immigrant residents. A $1 million legal defense fund was recently created in Chicago for immigrants facing deportation. Chicago Mayor Rahm Emanuel doubled down, saying that Chicago is, and will remain, a sanctuary city.

At the state level, lawmakers are working toward creating more laws to help their immigrant populations. In California, lawmakers are developing a bill that would create “safe zones” at public schools, hospitals and courthouses. The state is also considering creating a fund that would pay for legal counsel for immigrants facing deportation.

New York City Mayor Bill de Blasio vowed to protect the more than 500,000 undocumented immigrants registered in a municipal database. He stated that if the Trump administration requests data that may result in a NYC resident’s deportation, he would delete the database information.

Although the threat of cutting federal funding to these cities is ever present, some experts argue that defunding alone may not be realistically implemented. Phil Torrey, a Harvard Law School lecturer and supervising attorney of the Harvard Immigration Project, explained, “What the federal government can’t do at this point is basically pull funding wholesale from states and localities in order to get their local law enforcement agents to basically enforce federal immigration law.”

Torrey also explained that although the Department of Justice sets aside grants for these cities, the money lost would pale in comparison to the full amount federal funding they may receive.

Trump’s rhetoric may convey that the U.S. is shifting away from welcoming immigrants, but the sanctuary cities across the country are sending the opposite message. Whether the Trump administration will back down on this plan remains to be seen, but immigrants and activists continue to work toward more protections for their residents.

Comment » | Department of Homeland Security, Immigration and Customs Enforcement

What to Expect Under President-Elect Trump

November 29th, 2016

The days of having a Ku Klux Klan endorsement ruin your political career are apparently behind us, as the 2016 presidential election resulted in Donald J. Trump as the 45th president of the United States. But what will Trump’s America actually look like? Here’s a preview of what we might see for the future of immigration policy.

Mass Deportations?

President-elect Trump’s platform strongly focused on deporting undocumented immigrants. In a “60 Minutes” post-election interview, Trump doubled down on this sentiment, saying he plans to immediately deport 2-3 million undocumented immigrants who have “criminal records.” Details on how and when this plan might take effect are unknown, though House speaker Paul Ryan stated, “We are not planning on erecting a deportation force. Donald Trump is not planning on that.”

 Trump’s Cabinet

As the Trump transition team continues to name potential cabinet picks, the future of immigration reform looks bleak. Sen. Jeff Sessions (R-Ala.) will be nominated for Attorney General. Sessions has opposed nearly every immigration bill — for both legal and undocumented immigrants — that has come before the U.S. Senate. Sessions was rejected from a federal judgeship nomination in 1986 due to his “racially charged comments and actions.”

Two names that have been floated for Homeland Security Secretary are departing sheriff of Maricopa County, Arizona, Joe Arpaio, and Kansas Secretary of State Kris Kobach. Arpaio is an adamant supporter of restrictive immigration policies, and actively worked to deport immigrants crossing the southern border. Kobach worked with Trump throughout the campaign to articulate his hardline immigration policies.

Sanctuary Cities

In his first 100 days, Trump stated he’d work to cut funding to sanctuary cities, or cities that follow procedures that shelter undocumented immigrants. Mayors from cities including Chicago, Seattle, Baltimore and San Francisco announced their intentions to remain sanctuary cities for immigrants, though it is unknown how Trump’s plan may affect federal funding to these cities.

The Wall

One of Trump’s biggest rallying cries on the campaign trail has been building a southern border wall – and demanding that Mexico pay for it. However, there was no mention of such a wall in his plans for his first 100 days in office. We may just see more fencing.

Moving Forward

Many immigrants have feared for their safety and security in the weeks following the election. However, there are many ways to help immigrants and fight for comprehensive immigration reform policies. You can get started by calling representatives to protest these proposed immigration policies, or donating money to organizations that focus on immigrants’ rights.

Comment » | Immigration Policy Center

Nobels for Immigrants

November 1st, 2016

Immigration has always been a polemic issue in the United States, but 2016 in particular has been especially polarizing. Currently, there are 42.4 million immigrants living in the United States, with about 26.3 million in the workforce.

With this kind of growth in population, it’s only natural that the talent pool in the United States continues to grow. In fact, all one needs to do is look at the 2016 American Nobel Prize winners to see this point illustrated.

Being awarded a Nobel Prize is one of the ultimate accomplishments for those working to advance physics, chemistry, physiology/medicine, literature and peace. In 2016, six Nobel Prizes were awarded to American Laureates in areas of chemistry, physics and economics. This is a groundbreaking year for Americans, as the six winners are immigrants.

What makes these Nobel Prize winners stand out is that they are prime examples of how beneficial immigrants are to the United States. In an increasingly global world, science and technology cross borders. As Scottish-born Nobel Laureate Sir J. Fraser explained, “Science is global…the American scientific establishment would only remain strong ‘As long as we don’t enter an era where we turn our back on immigration.’”

This sentiment rings true in science, technology, engineering and math (STEM) fields, where the demand for workers is growing faster than the number of people filling these positions. Each year, thousands of immigrants apply for H-1B visas, hoping to be selected to work in the U.S. Many of these applicants are looking for jobs in STEM fields, thus complementing native-born workers.

A Twitter campaign “#TellAmericaItsGreat” led by Canadians has been gaining popularity after Canadian users began tweeting out everything that already make America great, such as the invention of the Internet. What really continues to make America great is its immigrant population, especially when working alongside natural-born workers.

Immigrants built the Unites States as we know it, and history has shown repeatedly the kinds of accomplishments and innovations that immigrants are capable of. Through comprehensive immigration reform, this kind of greatness would not be an isolated incident, but rather become the new norm.

Comment » | Immigration Policy Center

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