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  1. Return of the Travel Ban

    Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President's executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order ("EO"). The new EO was also severely limited by the courts.


    You'd think a bunch of people in burkas would be a bit more sympathetic to Muslims.

    But now, the Supreme Court has spoken, and the EO is back, at least in part. So what's the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC--they are a terrific organization that does yeoman's work in all areas of the immigration field):

    "[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have 'a credible claim of a bona fide relationship with a person or entity in the United States.'

    "What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a 'close familial relationship' with someone already here or if they have a 'formal, documented' relationship with an American entity formed 'in the ordinary course' of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

    "Who is likely to be allowed to enter the United States?


    • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
    • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who 'wish [] to enter the United States to live with or visit a family member' have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
    • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
    • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
    • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically--I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.


    "Who may have trouble entering the United States?


    • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
    • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically--it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment]."


    As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation--how the Department of Homeland Security ("DHS") interprets and applies the Supreme Court decision in actual, real-life cases.

    In that regard, I agree with Justice Thomas, who "fear[s] that the Court's remedy will prove unworkable" and will invite a "flood of litigation." Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

    In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court's decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that's not a great situation to be in.

    Finally, yesterday's decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court's decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

    All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. USCIS Introduces "Extreme Vetting" in New I-485 Adjustment of Status Form. Welcome to the United States of Ideological Purity. By Roger Algase

    Up to now, I-485 applicants who are successful in their applications to adjust status to permanent resident (green card) status have been receiving an I-797 approval notice with a wonderful greeting at the top stating:

    WELCOME TO THE UNITED STATES OF AMERICA

    Now, immigrants who are filing I-485 adjustment (AOS) applications will no longer have to wait until this form is approved in order to receive greetings of a very different kind from the US Department of Homeland Security.

    As soon as they read the new I-485 form which was introduced by USCIS on June 26, they will be welcomed into Donald Trump's promised Brave New World of "Extreme Vetting".

    While the new I-485 form was introduced with a USCIS announcement containing all the usual phraseology about how the form is more convenient, clear, user friendly, etc., which we are used to seeing every time a new, longer, more complex and convoluted immigration form is rolled out, the real difference between the new form and the current edition dated January 17, 2017 (only 3 days before the new president took office) is in the expanded "security" questions.

    While the new form, of course, does not in fact contain such a notice, it would not be inappropriate if it did contain one such as, say, the following:

    WELCOME TO THE UNITED STATES OF EXTREME VETTING

    To illustrate, the previous January 17, 2017 I-485 form (which will still be valid during a 90-day grace period) is 6 pages long and contains a total of 18 criminal history and security questions. The new form, in contrast, contains 80 (the real number, not a typo) criminal history and security questions. Moreover, many of these 80 questions are broken down into several parts, so that the total number of actual questions adds up to closer to 100 (or even more - I have not yet made an exact count). (Of course, the previous 18 questions also included a number of a's, b's c's, etc. so the actual total number of questions was higher than just 18.)

    This is not to say that there is anything wrong with big numbers per se in the sheer amount of questions asked. The immigration laws are extremely complex, and there are dozens of different grounds for being inadmissible to the United States.

    But the warning signs are in the vague, catch-all nature of some of the questions, which are not related to any specific provision of law, and seem to be nothing more than excuses to deny a green card to anyone whom our nation's 45th president, or his delegated immigration officials, decide that they do not want to remain in the United States for any reason they choose.

    Here are two examples:

    "Do you intend to:

    46.d Engage in any activity that could endanger the welfare, safety or security of the United States?

    47. Are you
    engaged in or, upon your entry into the United States, do you intend to engage in any activity that could have serious adverse foreign policy consequences for the United States?"

    What are these two questions supposed to mean? What immigration or other law defines the extraordinarily broad and vague term "welfare, safety or security of the United States"?

    What on earth could the even broader and vaguer phrase: "potentially adverse foreign policy consequences for the United States" possibly refer to?

    With regard to the first of the above two questions, some members of the Trump administration, such as Attorney General Jeff Sessions and Senior Presidential adviser Stephen Bannon, are on record as stating that all immigration in its present form, whether permitted by law or otherwise, is detrimental to the welfare of the United States.

    Trump himself, in his August 31, 2016 immigration address, called for much lower levels of legal immigration in general. Under this theory, if the president thinks that America already has too many immigrants (as he has claimed) any immigrant who applies for a green card might be "endangering" the "welfare" of the United States.

    This may sound like an extreme example, but consider some of the people whom Trump has, during both his campaign and after assuming the office of president has attacked as supposedly endangering the "safety and security of the United States". Here is a partial and incomplete list:

    1) President Barack Obama,
    2) Presidential candidate (and popular vote winner) Hillary Clinton,
    3) Any federal judge who opposed the president's Muslim ban executive orders,
    4) Members of the Democratic party,
    5) Anyone else who opposes or disagrees with the current president on any issue.

    The above list is not given in order to argue political points. It is only meant to illustrate the point that the above phrase can mean anything an immigration examiner wants it to mean - very possibly leading to long delays or even denials of green card applications for totally arbitrary reasons.

    This is even more true when we get to the phrase "potentially serious adverse foreign policy consequences for the United States."

    Who makes that decision?

    Were there potentially serious adverse foreign policy consequences for the U.S when the president pulled out of the Paris Climate Change Accords? When he (reportedly) pushed and shoved the Prime Minister of a much smaller country (Montenegro)?

    When the president criticized NATO allies as "deadbeats", while falling to impose stronger sanctions on Russia's dictator Vladimir Putin, alleged connections to whom on the part of Trump or his top officials are now under investigation by an independent counsel?

    Again the purpose here is not to argue about political questions. It is only to show that certain questions in the new I-485 AOS application form appear to be more concerned with imposing arbitrary standards or ideological purity on green applicants that go far beyond anything sanctioned or contemplated by our immigration laws - or by the norms of any democracy.

    Roger Algase
    Attorney at Law


    Updated 06-27-2017 at 01:29 PM by ImmigrationLawBlogs

  3. USCIS Introduces Redesigned Form for Green Card Applicants

    by , 06-26-2017 at 01:46 PM (Matthew Kolken on Deportation And Removal)
    Agency Publishes Revised Form I-485 and Instructions

    WASHINGTON—U.S. Citizenship and Immigration Services today published a revised Application to Register Permanent Residence or Adjust Status (Form I-485). The new Form I-485 and instructions have been substantially updated to reduce complexity after collecting comments from the public and stakeholders.

    The revised version gives applicants better information to accurately complete Form I-485, including clear navigation to the parts of the form and instructions that are relevant to the applicants’ specific situations. These updates should increase the efficiency of the adjudication process by reducing errors and requests for evidence.

    Applicants living in the United States file Form I-485 to adjust their immigration status and become lawful permanent residents, which allows one to live and work permanently in the United States. Adjusting status is a critical step for those seeking U.S. citizenship.


    USCIS also revised the Form I-485 Supplement A and Form I-485 Supplement J (as well as each supplement’s instructions), to provide applicants with more detailed information about how to properly complete, file, and submit evidence if those supplements are applicable to their situation.


    Beginning today, there will be a 60-day grace period during which USCIS will accept both the 01/17/17 and 06/26/17 editions of Form I-485 and Supplement A and J. Beginning Aug. 25, USCIS will only accept the revised Form and Supplement A and J of Form I-485 and will no longer accept earlier versions of either form.


    What’s New? USCIS improved Form I-485 to include:


    • Better flow and organization of questions to make it user-friendly for both the applicants and USCIS. In addition, readability has significantly improved due to new spacing, columns, flow, white space, and formatting.
    • The questions about biographic information (Form G-325A) so applicants will no longer need to file a separate form;
    • A list of 27 immigrant categories, which allows applicants to identify the specific immigrant category under which they are applying; and
    • A comprehensive, updated list of admissibility-related questions. The added questions to ensure USCIS officers have the necessary information to better assess the applicant’s admissibility and eligibility.


    What Remains the Same

    While both Form I-485 and its instructions may look different from earlier versions, the process for filing Form I-485 and Form I-485 Supplement A and Form I-485 Supplement J remains the same. Applicants must still submit their paper applications to the location listed in the form instructions.

    Further information

    Visit the Form I-485, Application to Register Permanent Residence or Adjust Status page and the Form I-485 Supplement A page for further information about the new forms and instructions.
    Applicants can visit the USCIS Green Card Eligibility Categories page for information on eligibility requirements for each immigrant category.
    All USCIS forms are free on our website at www.uscis.gov/forms.
    For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and Instagram (@uscis).

    - USCIS -
  4. DHS Statement On SCOTUS Decision On Trump's Executive Order

    by , 06-26-2017 at 01:38 PM (Matthew Kolken on Deportation And Removal)
    Release Date:
    June 26, 2017

    For Immediate Release
    Office of the Press Secretary
    Contact: 202-282-8010

    WASHINGTON – The Supreme Court today has allowed the Department of Homeland Security to largely implement the President's Executive Order and take rational and necessary steps to protect our nation from persons looking to enter and potentially do harm. The granting of a partial stay of the circuit injunctions with regard to many aliens abroad restores to the Executive Branch crucial and long-held constitutional authority to defend our national borders.

    The Department will provide additional details on implementation after consultation with the Departments of Justice and State. The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.
  5. Supreme Court Hands Trump Pyrrhic "Victory" by Upholding Muslim Ban Only Against People Not Likely to Come to U.S. Anyway. Roger Algase

    Update: June 26, 9:15 pm:

    For another opinion supporting my own view that the June 26 Supreme Court decision reinstating parts of Trump's Muslim entry ban order was considerably less than an overwhelming victory for the president; and that it can even be looked at a resounding defeat for Trump if one focuses on the fact that lifting the injunction will probably make very little difference in who actually gets admitted to the US from the six countries affected, with or without the entry ban, see:

    Sabrina Saddiqui, writing in The Guardian:

    https://www.theguardian.com/us-news/...uling-analysis

    Nonetheless, even if the president's "victory" in having at least part of his ban reinstated may be more symbolic than in actual practice, the message that the Supreme Court is sending to the Muslims of America - and the world - is highly disconcerting for the future of religious freedom in America and of our democracy.

    The message is that the highest court in the most powerful and respected nation in the world is willing to wheel and deal away basic religious equality and human rights for almost 200 million people in the six countries and their co-religionists in the US, and accept second-class status for American Muslims, while branding their religion as a pariah one that is just a bit less "equal" than the others.

    By banning, even "temporarily" (and of course Trump is going to extend the ban, most likely re-branded as "extreme vetting", for as long and as often as he can, especially encouraged by the failure of the Supreme Court to oppose him more vigorously this time around - that is a given) almost 200 million people who do not have close ties with America, simply because of their religion, the Court is not only rewarding the president for his bigotry, bad faith and grab at imperial power in issuing the ban orders in the first place, but is encouraging him to adopt even wider, more bigoted and dangerous (for our democracy) ban or exclusion policies in the future.

    Today, Trump may have only succeeded in imposing a largely theoretical ban against a group of people who might not have been able to get visas anyway even without the ban.

    But who knows who will be the object of Trump's immigration bans or "extreme vetting" tomorrow? Most or all immigrants from outside Europe, as in the infamous 1924 Johnson-Reed law which both Trump's AG, Jeff Sessions (in 2015) and, (90 years earlier) an aspiring young German politician named Adolf Hitler wrote about so favorably?

    Any immigrant or visitor from anywhere in the world who has ever spoken out against Trump, or who refuses to pledge personal loyalty to him, as Trump allegedly asked former FBI Director James Comey to do before firing him? It has happened in other countries. It could happen in America.

    Did the Supreme Court, on June 26, 2017 just make it even more likely that, one day soon, it will happen in America?

    Update: June 26, 2:10 pm:

    In its decision to uphold the parts of the lower courts' temporary injunctions against enforcing Trump's entry ban that would bar citizens of the six targeted Muslim countries against people from those countries who have bona fide connections with the United States (see below), the Supreme Court, for the fist time that I am aware of, appears to be putting non-permanent resident foreign citizens who have bona fide connections with the US in the same category along with permanent residents in terms of having rights that take precedence over the executive's claimed unlimited right to decide who can enter the United States under the Plenary Power doctrine.

    In doing so, the Supreme Court may have opened the door to a significant weakening of that doctrine, which dates from the period of the infamous Chinese exclusion laws. "Plenary Power" at least in theory, gives the executive and Congress exclusive power over all admissions to the US by foreign citizens.

    While the Court did not specifically discuss Plenary Power in its decision, by making this important distinction, the Court may have weakened the Plenary Power doctrine to the point where, possibly at some time in the future, this doctrine might wind up in the dustbin of American immigration law history where it deserves to be.

    This is not to deny, of course, that any judicial support for Trump's Muslim ban, directed against even one person based on religion, is still a vote in favor of prejudice and bigotry, and against the values of equal justice and human rights on which America is based, and which are now under unprecedented attack in this administration.

    My original comment follows:

    In a per curiam decision from which the Court's three most conservative Justices dissented in part, the Supreme Court on June 26 agreed to hear the Trump administration's appeal from two Circuit Court decision enjoining implementation of the entry ban against citizens of six targeted almost 100 percent Muslim countries, but denied the government's motion to lift the Circuit Court injunctions against enforcing the ban against citizens of those countries who have a bona fide connection to the US - i.e. the people who are most likely to want to come to this country and who were the main targets of Trumps ban orders.

    The Court, in an evident bone thrown to the administration and to the Justice Department lawyers defending the Muslim ban, agreed to lift, for 90 days, the lower courts' injunctions against banning people who would be the least likely to want to come to the US or to be able to receive visas if they applied - namely people who have no connection with the U.S.

    The Supreme Court, in its decision, also indicated that by the time the case comes up for hearing in October, the entire entry ban order may be moot.

    While the president may no doubt try to "Trumpet" this decision as a resounding victory, it is, in reality, closer to the type of victory won by King Pyrrhus in ancient Greek history. This is not the type of "victory" that most rational people are looking for in any situation.

    The decision, however, is likely to cause a good deal of inconvenience, hardship and confusion at US airports this summer as various immigration officers raise questions about whether people from the six countries entering the US have the requisite bona fide connections with the U.S.

    There will no doubt be a good deal of litigation in the lower courts over this question during the next 90 days, and during the periods over which it is virtually certain that Trump will seek to extent the "temporary" (ha, ha, ho, ho, haw, haw haw, - who on earth really believes that?) ban.

    The three dissenting Justices wanted to lift the Circuit Court injunctions in their entirely and reinstate Trump's original six-country ban order against all of the approximately 180 million citizens of those countries, almost all of whom choose to attend mosques rather than churches or synagogues.

    No surprise here in the case of Justices Thomas and Alito, but one can express some surprise about Justice Gorsuch, who strongly stood up in favor of immigrant rights against executive overreach when Obama was president and Gorsuch was sitting on the 10th Circuit, but who now is evidently willing to give Trump virtually imperial powers in this area.

    Et tu, Neil?

    The full text of the Court's decision can be accessed by going to the June 26 Washington Post article:

    Supreme Court Will Hear Travel Ban Case

    and clicking on the direct link to the decision in that article.
    __________________________________
    Roger Algase is a New York immigration lawyer, and a graduate of Harvard College and Harvard Law School, who has been helping mainly skilled and professional immigrants from diverse parts of the world with work visas and green cards for more than 35 years.

    Roger focuses mainly on H-1B, O-1 and J-1 work visas, and on green cards through labor certification (PERM) and through opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

    Updated 06-27-2017 at 06:08 AM by ImmigrationLawBlogs

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