16 February 2017
Category News Room
16 February 2017,

9th Circuit Court of Appeals Halts Implementation of Travel Ban Executive Order

On February 9, 2017, the Federal Court of Appeals directly and unanimously rejected the arguments made by the Trump Administration in favor of its sought travel ban.  While the ruling did not specifically hold that the measure itself is wholly unconstitutional (as the decision was based on whether to stay the Temporary Restraining Order and not the merits of the ban), it made the following important decisions that we believe are troubling results for the Administration to overcome at this time:

  • both Washington State and Minnesota State had standing to bring this action;
  • the judge did not err in issuing the Temporary Restraining Order;
  • despite the Administration’s assertion the President’s authority in National Security matters is absolute  insofar as it pertains to visas and entry, it is not;
  • the Administration would not be unduly harmed by a Restraining Order – meaning there is no likely harm to the government or its people as the government failed to produce any evidence;
  • and perhaps most importantly, that the States had a high likelihood of success on the merits, specifically that the activity limited and intent of the EO was to single out individuals based on a religious ground (that there was a constitutionally protected right).

This decision is a complete rebuke of this failed policy.  While the actual decision does not comment on the final issue in front of the courts – “Is this EO ultimately within a President’s Constitutional Authority?” the fact that the TRO was granted and then upheld is a strong signal the courts are not likely to find favor with the EO, as drafted, after a complete review. For further details on our firm’s approach to this important development, please review our related travel guidance.

Senator Tom Cotton Plans to Introduce Bill Crafted To Reduce Legal Immigration by Fifty Percent

U.S. Senator Tom Cotton plans to introduce the Reforming American Immigration for Strong Employment Act. Cotton asserts that this Act will decrease legal immigration by fifty percent. This Act is designed to eliminate the Diversity Immigrant Visa Program, which is a program that offers 50,000 immigrant visas to foreign nationals from countries with low admissions. These visas are divided among six geographic regions and no one country can receive more than seven percent of the available visas during any given year. Another part of the Act will cap the number of refugees at 50,000 per year.

Senator Cotton insists that this Act will lead to higher wages for American workers as it eliminates 100,000 visas that do not require a foreign national to have a certain level of education. It is clear, however, that a reduction of such size will have a significant effect on traditional U.S. immigration values of family unity and refugee resettlement. We will be monitoring the progress of this legislation closely and providing updates accordingly.

Trump Administration Widens Priority Categories for Removal Proceedings

As part of the Trump Administration’s executive changes to U.S. immigration policy, the November 20, 2014 memo entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (aka the Priorities Memo) is no longer in effect. This now voided Priorities Memo provided guidance by the Department of Homeland Security to identify threats to national security related to immigration and prioritized removal proceedings for those identified immigrants who posed a threat to national security, border security, and public safety.

The Trump Administration’s new policy heavily expands the class of foreign nationals would fall under deportation and removal priorities, including nearly anyone who entered the U.S. without inspection. We understand that such changes and periods of uncertainty cause anxiety to many, including those more than 700,000 DACA recipients who were brought to the U.S. as children. We are monitoring the developments with regard to this policy change closes to better understand how this might be implemented.

Immigration Hard-Liner Senator Jeff Sessions Confirmed As U.S. Attorney General

After a contentious confirmation debate, Alabama Senator Jeff Sessions was sworn in on February 9, 2017 as U.S. Attorney General. As U.S. Attorney General, Mr. Sessions will have significant influence over immigration policy overseeing all the U.S. immigration courts and also overseeing the Office of Legal Counsel, responsible for providing interpretation of laws to the President. Immigration advocates are concerned with Mr. Sessions’ previous rhetoric on immigration, long considered too hardline for the majority of his Republican colleagues in the Senate. In particular, Mr. Sessions has repeatedly expressed a desire to not only eliminate illegal immigration, but also significantly reduce legal immigration. We expect that in his official capacity as U.S. Attorney General, Mr. Sessions will support increased removal efforts, legal immigration reductions, and restrictions on Sanctuary Cities.

Trump Administration to Ask Congress for more than $20 Billion for Construction of Southern Border Wall

An internal report issued by a group commissioned by Secretary John Kelly was released this week estimating President Trump’s promised border wall will take over three years to build and cost at least $21.6 billion – a much higher price-tag than the $12-billion figure repeatedly cited by the Trump campaign. Kelly is expected to present the report to the Department of Homeland Security (DHS) in the coming days in connection with the request for U.S. taxpayer funds from Congress and permission to begin construction. The report assumes DHS would receive the necessary funding from Congress by April or May, giving the department sufficient time to secure contractors and begin construction by September.

President Trump has rejected these estimates, stating that he will negotiate down the cost. On the other hand, Bernstein Research, an investment research group that tracks material costs, speculates that uncertainties around the project could drive the cost up – not down – and that the project could ultimately end up costing closer to $25 billion.

Visa Bulletin for March 2017

EB-1 continues to remain current for all areas of chargeability. There was slight forward movement of about a month for EB-2 China (15 Dec 2012) and India (01 June 2008), but the most significant forward movement is EB-3 China, which went from 01 Oct 2013 in February to 15 March 2014, and EB-3 Philippines which jumped from 15 Oct 2011 to 15 March 2012. EB-3 India remains stagnant at 22 March 2005, while EB-3 all other chargeability areas moved forward to 01 Dec 2016.

While USCIS has not publically said whether it will follow chart two and allow for pre-filing of adjustment applications, it is unlikely given that they have strictly followed chart one for the past few months.  March 2017 Visa Bulletin

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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