The Catholic University of America

Welcome to the Immigration section of our webpage. This front page will reflect our most current information on immigration law affecting educational institutions.

 

 

USCIS to Resume H-1B premium Processing for Cap-Exempt Petitions, July 24, 2017

Final Rule Delaying Effective Date of the International Entrepeneur Rule, 82 Fed. Reg. 31887, July 11, 2017. The rule included criteria for determining which international entrepreneurs could obtain parole into the United States, was issued by the previous administration and was scheduled to go into effect on July 17, 2017. It is now delayed to consider it in the context of the Jan. 25 Executive Order on immigration. See the NY Times article titled In Blow to Tech Industry, Trump Shelves Start Up Immigrant Rule

Trump v IRAP and Trump v. Hawaii, Nos. 16-1436 and 16-1540 U.S. Supreme Court, June 26, 2017 

In a per curiam decision, the Supreme Court  held that the  Executive Order (Travel Ban) as amended may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the U.S. This would include a famly member, a visa to attend school in the U.S, or a work visa. As applied to all other individuals, the Government's application to stay the injunction is granted until a final decision is made by the Supreme Court, with the oral arguments to be heard in the fall of 2017. This means that the Court reinstated a portion of the travel ban for certain citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. Advice for travelers from the affected countries is posted here in the FordMurray newsletter of June 26, 2017

Hawaii v. Trump, Case No. 17-15589, (C.A. 9th Cir.), June 12, 2017

In this case, unlike the 4th Circuit case decided upon constitutional grounds, the 9th Circuit found the Immigration and Nationality Act had been violated. The Ninth Circuit concluded that the President exceeded the scope of his statutory authority by issuing the Executive Order without first making a sufficient finding that entries into the United States of the prohibited classes would be "detrimental to the interests of the United States." The Ninth Circuit further found that the Executive Order violated the provisions of the Immigration and Nationality Act that forbid nationality-based discrimination in immigration-related actions and require the President to follow a specific process before setting a cap on refugee admissions.

We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million
nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President 
must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.”

Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order.****
 

See the New York Times article *Trump Loses Travel Ban in Appeals Court.*Recission of Deferred Action for Parents (DAPA) and Confirmation Deferred Action of Childhood Arrivals (DACA) will continue: June 15, 2017 Memorandum from John F. Kelly. See FAQ as well as press release

International Refugee Assistance Project et al. v. Trump, No. 17-1351, (C.A. 4th Cir.), May 25, 2017, 2017 WL 2273306.  

In a 205 page opinion the 4th Circuit affirmed in substantial part the district court's issuance of a nationwide preliminary injunction barring enforcement of the revised travel ban issued by the President which would have limited travel from 6 predominantly Muslim countries.  The Court of Appeals found the order unconstitutional in a 10-3 opinion. 

The focus of the case was on section 2(C) of the challenged  Executive Order 13780, Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period, 82 Fed. Reg. 13209, March 6, 2017. ) 

The suit sought relief claiming violation of the Establishment Clause of the First Amendment, the equal protection component of the Fifth Amendment, the Immigration and Nationality Act, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The relief granted was based upon the Establishment Clause claim.  The Court of Appeals found that plaintiffs had plausibly alleged that the second Executive Order's stated national security interest was provided in bad faith, as a pretext for its religious purpose. 

The decision opened with this paragraph: 

The question for this Court, distilled to its essential form, is whether the
Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

The decision quoted from the President's Statement on Preventing Muslim Immigration, posted during Trump's campaign, along with many other anti-Muslim statements made by the candidate.

At page 70 the Court of Appeals noted: 

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

The government filed a petition for review with the Supreme Court on June 1, 2017. The respondents were given until June 12, 2017 to file a response. 

See the New York Times Appeals Court Will Not Reinstate Trump's Revised Travel Ban, May 25, 2017. 

March 31, 2017 Policy Memorandum Rescinding the December 22, 2000 Guidance memo on H-1B computer related positions

 

Computer programmer positions will no longer automatically be classified as *specialty occupations*. Effective immediately. 

Temporary Suspension of H-1B premium Processing (announced by USCIS)

ACE summary of revised Travel Ban (3-9-17)

March 6, 2017 Revised Travel Ban

March 5, 2017 Fact Sheet on Revised Executive Order on travel ban

March 5, 2017 Q and A on the Revised Executive Order on travel ban 

NAFSA updates page

Feb. 21, 2017 DHS Guidance on Enforcement of Immigration Laws

Washington v. Trump, Order: Case No. 17-3515, (C.A. 9) Feb. 9, 2017 
A per curiam opinion which in essence keeps the borders open for those banned by the current administration. In part the court stated: 

Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the  judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. 

***

By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).

Immigration Ban and Related Court Cases: Great resource, all cases by circuit, with supporting materials. 

NAFSA Resource Page On Travel Advisory for Nationals of Certain Countries Pursuant to Executive Order, Jan. 29, 2017 

ACE Issue Brief on Immigration Post-Election Q &A: DACA Students, "Sanctuary Campuses" and Institutional or Community Assistance. (Dec. 2, 2016)

 

USCIS fees will increase for applications postmarked on or after Dec. 23, 2016. These are the fees that will be increased: 

 

Form Old ($) New ($)
I-129 (H-1B, L-1, O-1, etc.) 325 460
I-539 (H-4, L-2, O-3, etc.) 290 370
I-140 (immigrant petition) 580 700
I-485 Adjustment of Status 985 + 85 (bio fee) 1140 + 85 (bio fee)
I-485 (child) 635 750
I-131 (adv parole, reentry prmt) 360 575
I-765 (EAD work authorization) 380 410
N-400 (citizenship) 595 + 85 (bio fee) 640 + 85 (bio fee)
Premium Processing Fee 1225 1225

 

Premium processing for I-485 (Adjustment of Status) applications will still not be available after the fee increase.

Courtesy of Attorney Russell C. Ford, of FordMurray.