Immigration Highlights

October 30, 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.

Executive Actions

White House sets refugee limit for FY2019

On October 4, 2018, the White House issued a memo stating that the U.S. would accept up to 30,000 refugees in fiscal year 2019 (October 1, 2018 to September 30, 2019). Under U.S. immigration law, a refugee is any person who, because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion,” is unable or unwilling to return to his/her home country. The 30,000 ceiling is down from the 45,000 refugee cap established for fiscal year 2018, which was already the lowest refugee cap since Congress passed the Refugee Act of 1980 (a ceiling of 231,700 was enacted in 1980, and the cap ranged between 70,000 and 90,000 between 2000 and 2016). Only 22,491 refugees were actually admitted to the U.S. for fiscal year 2018.

According to the U.S. Department of State, the 30,000 ceiling takes into account “security measures to protect national security and public safety” and the need to address the current backlog of asylum cases. The record low refugee cap follows a controversial June 2018 decision by Attorney General Sessions to eliminate asylum/refugee protections for victims of domestic violence and gang violence, finding such victims are not members of a particular social group.

For more information, see this White House memo and Department of State’s refugee admissions proposal. Historical data on refugee caps and actual admissions is available via the Refugee Processing Center.

Court and legislative updates

Judge temporarily blocks Trump’s decision to end TPS for nationals of four countries

On October 3, 2018, a California federal judge issued a preliminary injunction preventing the Trump administration from implementing its decisions to terminate Temporary Protected Status (TPS) for nationals of El Salvador, Haiti, Nicaragua and Sudan, finding there are “serious questions” about the decisions to terminate TPS for these countries. The preliminary injunction will remain in effect while litigation proceeds in this case, and TPS beneficiaries from these countries should discuss the impact of the injunction with their employers and/or immigration counsel.

For more information regarding TPS, the plaintiffs’ argument and the court’s decision, see our recent alert.

California remains at forefront of battle against Trump administration’s withholding of federal funds from “sanctuary cities”

On October 5, 2018, in City and County of San Francisco v. Sessions and State of California v. Sessions, U.S. District Judge William Orrick III ruled in favor of the city and state in their challenge of the Trump administration’s withholding of federal grants under the Edward Byrne Memorial Justice Assistance Grant from so-called “sanctuary cities” or states—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 local police officers to conduct federal law enforcement activities. Specifically, Judge Orrick found that Section 1373 of the Immigration and Nationality Act (INA), which prohibits restrictions on the sharing of immigration information between federal, state and local governments, is unconstitutional, and further, that the Trump administration’s policies violate the separation of powers, among other violations. However, Judge Orrick opted to suspend the nationwide implementation of an injunction until the Ninth Circuit Court of Appeals hears the case on appeal.

In August 2018, the Ninth Circuit Court of Appeals affirmed a separate ruling by Judge Orrick in City and County of San Francisco v. Sessions finding the Trump administration’s executive order to withhold federal grants from sanctuary cities and states unconstitutional, but vacated a nationwide injunction, joining the Seventh Circuit Court of Appeals, which also ruled against the Trump administration’s sanctuary policies, but limited its holding to the city of Chicago.

On July 5, 2018, a California federal district court upheld many of California’s “sanctuary” protections, but granted the Department of Justice’s request for a preliminary injunction against portions of California’s Immigrant Worker Protection Act.

Law and policy updates

USCIS NTA policy goes into effect October 1, 2018

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance mandating the issuance of a Notice to Appear (NTA), the mechanism to initiate removal proceedings, to any foreign national “not lawfully present” in the U.S., among other immigration violations. The new policy greatly expands the role of USCIS in issuing NTAs, and increases the chance a foreign national may face removal proceedings following an adverse decision by USCIS that renders him/her without a lawful immigration status. USCIS began implementing this new policy on October 1, 2018, and the policy is in effect with regard to the primary application for receiving a “green card” (Form I-485), and the application to change/extend non-immigrant status (Form I-539). Importantly, the new NTA policy will not be implemented with respect to employment-based petitions at this time, although a denial of such a petition may still render an employee unlawfully present (a removable offense). Guidance from USCIS regarding the application of the NTA policy to employment-based petitions is forthcoming.

For more information regarding the USCIS NTA policy, and proactive steps that can be taken to avoid rendering an employee “not lawfully present,” see our client alert.

Trump administration changes G-4 and diplomatic visa policy for non-married same-sex couples

At an October 2, 2018 briefing, the Department of State confirmed that same-sex domestic partners of G-4 and Diplomatic Visa Holders will no longer be eligible for G-4 dependent visa status if they are unable to submit proof of a lawful marriage by the end of the year. The change in policy will impact same-sex domestic partners of foreign diplomats, and employees at organizations such as the United Nations and World Bank. While supporters of the change note the Department of State has not issued G-4 family visas to non-married heterosexual domestic partners for several years, opponents have called the new policy discriminatory in light of the fact that same-sex marriage is still not legally recognized in many countries.

For more information, see DOS briefing transcript.

TN visas survive NAFTA negotiations, but procedural challenges may remain under new agreement

On September 30, 2018, the United States, Mexico and Canada reached an agreement in their ongoing negotiations regarding the North American Free Trade Agreement (NAFTA). The new United States–Mexico–Canada Agreement (USMCA) will not take effect until there is a Congressional vote on an implementing bill, among other requirements, and therefore the future of USMCA is to be determined. Importantly, the USMCA retains NAFTA’s TN visa provisions, although it is unclear whether the transition from NAFTA to the USMCA will result in unforeseen procedural issues for TN visa holders.

Text of the new USMCA, including provisions allowing for the temporary entry of professional workers, can be found here.

USCIS updates medical exam validity period

As a general rule, foreign nationals applying for a green card must undergo a medical examination by a government approved civil surgeon to demonstrate they are not ineligible for a green card based on the “health related grounds” of inadmissibility enumerated in the INA. The results of the medical examination are reported on Form I-693 by the civil surgeon, which is then submitted to USCIS as part of the application process. Pursuant to a new USCIS policy, effective November 1, 2018, the Form I-693 must be signed by the civil surgeon no more than 60 days before the filing of an immigration benefit application. Foreign nationals should therefore plan the timing of their medical examination accordingly. However, under the new policy, medical exams will now be valid for two years instead of just one, which could eliminate the need for multiple exams during increasingly lengthy green card processes.

For more information, see USCIS policy manual update.

Travel updates

Canada’s legalization of marijuana prompts statement from CBP

On October 17, 2018, Canada legalized recreational marijuana, prompting a statement from U.S. Customs and Border Protection (CBP) reminding travelers that marijuana remains a controlled substance under U.S. federal law. Specifically, under the Immigration and Nationality Act (INA), any foreign national traveler deemed a “drug abuser or addict,” or who violates a law relating to a controlled substance, may be found inadmissible to the U.S. According to CBP, a “Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S., however, if a traveler is found to be coming to the U.S. for reasons related to the marijuana industry, they may be deemed inadmissible.”

For more information, see the CBP Statement.


USCIS now using tablets to administer English test for naturalization

On October 1, 2018, USCIS began using digital tablets to administer the English writing and reading sections of the naturalization test. To become a naturalized U.S. citizen, applicants are required to take an English language and U.S. civics examination unless they qualify for an exemption or waiver of the test requirement. While the civics examination remains paper-based, USCIS will now use digital tablets for the English reading and writing examination.

For more information, see this USCIS announcement. For more information regarding the naturalization process in general, see this USCIS page.

Diversity green card lottery for fiscal year 2020

Each year, 50,000 immigrant visas are made available through a Diversity Visa Lottery to people who are natives of countries (typically, a person’s country of birth) with low rates of immigration to the United States. Entries for this year’s Diversity Visa Lottery, for fiscal year 2020, must be submitted electronically between noon, Eastern Daylight Time, Wednesday, October 3, 2018, and noon, Eastern Standard Time, Tuesday, November 6, 2018.

For more information, see our client alert.

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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