Immigration Highlights

July 26, 2018

NP Immigration Newsletter

Author(s): Courtney H. New, Jason Gerrol

The U.S. immigration landscape continues to shift. This alert contains several updates from the last few weeks that we wanted to highlight for you.

Court and legislative updates

California’s sanctuary laws mostly survive DOJ challenge, but parts of the Immigrant Worker Protection Act enjoined while litigation proceeds

On January 1, 2018, several California “sanctuary” laws, including the Immigrant Worker Protection Act (the “Act”), went into effect. In brief, the Act imposes various requirements on California employers with regard to restricting access of federal immigration agencies to nonpublic work areas and I-9 inspections, among other requirements. On July 5, 2018, a California federal district court judge upheld many of California’s “sanctuary” protections, but granted the Department of Justice’s request for a preliminary injunction against those portions of the Act that prohibit employers from voluntarily consenting to an immigration enforcement agent’s request to enter any nonpublic areas of the workplace or to review employee records without a judicial warrant, as well as the provisions prohibiting the reverifying of work eligibility unless specifically required by federal law. The court did not enjoin the Act’s requirement to notify employees and authorized union representative(s) of any impending I-9 inspection. California employers should note that the court’s injunction is only in place while litigation proceeds on the matter, and should consult with experienced immigration and/or employment counsel regarding their ongoing obligations under the Act.

For more information regarding California’s Immigrant Worker Protection Act, please see our client alert.

States continue to challenge Trump’s attempts to withhold funding from sanctuary communities

On July 18, 2018, two separate complaints were filed challenging the federal government’s attempts to withhold public safety funds (e.g., Byrne funds) from sanctuary communities (i.e., communities that have decided to limit cooperation with federal immigration authorities because they feel such cooperation undermines the trust between local law enforcement and immigrant communities and/or negatively impacts local law enforcement resources by forcing officers to conduct federal law enforcement activities). In short, the complaints, filed by New York City and the states of New York, Connecticut, Massachusetts, New Jersey, Virginia and Washington, respectively, argue the conditioning of federal funding violates the Tenth Amendment by forcing states to enforce federal immigration laws, among other arguments. The complaints follow Seventh Circuit Court of Appeals rulings that initially placed a nationwide injunction on the withholding of federal funding from so-called sanctuary jurisdictions, but was later scaled back to apply only to the city of Chicago.

While litigation remains ongoing, the issue will likely be decided by the U.S. Supreme Court. For more information regarding the latest lawsuit, see this NY Times article.

Law and policy updates

New USCIS Notice to Appear policy may significantly impact employment-based beneficiaries

New policy guidance mandates U.S. Citizenship and Immigration Services (USCIS) to place in removal proceedings any foreign national “not lawfully present.” While USCIS has always maintained the authority to place a foreign national in removal proceedings by issuing a Notice to Appear (NTA), the agency has historically left such immigration enforcement actions to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The new policy may have wide reaching implications for employment-based beneficiaries, such as in cases where the denial of an H-1B extension by USCIS, for example, would render the foreign national employee unlawfully present in the U.S. While the extent to which USCIS will act in accordance with this new policy remains to be seen, employers and foreign nationals alike should evaluate the potential impact of this new policy on their respective immigration applications and petitions.

For more information, please see our Nixon Peabody NTA client alert.

New USCIS request for evidence policy may further complicate the new NTA policy

Further, on July 13, 2018, USCIS issued a separate policy memorandum announcing greater discretion on the part of USCIS officers to deny an application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This means that petitioners and applicants may not have any warning of a potential issue, or any opportunity to address it, prior to receiving a USCIS denial. The new policy is significant, especially in the context of the new USCIS NTA policy, where denials may render a foreign national not lawfully present in the U.S. and trigger removal proceedings.

For more information, please see our Nixon Peabody NTA client alert.

DHS to extend TPS for Yemenis

On July 5, 2018, the Department of Homeland Security (DHS) announced the extension of Temporary Protected Status (TPS) for Yemen for an additional 18 months through March 3, 2020. As background, the DHS may designate a country for TPS when conditions in that country prevent the safe return of its nationals and, similarly, may terminate TPS once those conditions have improved. TPS recipients from Yemen will need to re-register to extend their TPS status.

For more information, see the USCIS TPS page for Yemen.

DHS to extend TPS for Somalians

Similarly, on July 19, 2018, DHS announced the extension of TPS for Somalia for an additional 18 months through March 17, 2020. TPS recipients from Somalia will need to re-register to extend their TPS status.

For more information, see the USCIS TPS page for Somalia.

Travel updates

Burma and Laos visa sanctions

On July 10, 2018, DHS, in coordination with the Department of State, announced visa sanctions on Burma and Laos. According to DHS, the sanctions are the result of Burma and Laos denying or unreasonably delaying the acceptance of their respective nationals ordered removed from the U.S. In general, the sanctions will impact a small number of Burma and Laos applicants for a U.S. visa (primarily government officials applying for a visitor visa), although DHS did announce that those sanctions may change or expand in the future.

For more information, see DHS announcement.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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