The Catholic University of America

 

Immigration Issues for Faculty Staff and Students

The Catholic University of America welcomes to its community people from around the globe. CUA students and employees, as well as their families, may be affected by current developments in immigration laws. The information below addresses current topics.

 

Klasko Law Immigration Update: Lawsuit Challenges New USCIS Policy on "Unlawful Presence" for Foreign Students and Exchange Visitors

The complaint asserts that the new policy is unlawful for several reasons, including, among other things, that the defendants “failed to undertake the notice and comment required in these circumstances,” such as by not publishing advance notice in the Federal Register and responding to public comments, and by not complying with the Administrative Procedure Act.

 

Ramos v. Nielsen,  Case No. 18-cv-01554-EMC (10-3-18)( N. D. CA), Order Granting Plaintiffs' Motion for Preliminary Injunction

This preliminary injunction puts a halt to the government ending protected status for immigrants from Sudan, Nicaragua, Haiti and El Salvador who have been living and working legally in the US for up to twenty years.  About 300,000 TPS (temporary protected status-see 8 USC 1254a(b)) beneficiaries have been allowed to stay in the US because of unsafe or dangerous conditions in their home countries. The Plaintiffs challenged the Trump administration's decision to terminate their status. This injunction stands pending a final determination of the case on the merits. 

The judge in the case stated it was indisputable that absent the injunction the immigrants from these countries with TPS status, and their children, would suffer irreparable harm and great hardship. The government has shown no harm to the status quo, and plaintiffs have established without dispute the economy would be hurt if these persons were removed. 

The Plaintiffs in the case brought Equal Protection and Administrative Procedure Act claims.

Haiti's TPS designation was terminated on Jan. 18, 2018, effective July 22, 2019.  Sudan's TPS was terminated on Oct. 11, 2017, effective Nov. 2, 2018. On Dec. 15, 2017, the Government announced Nicaragua's TPS would be terminated as of Jan. 9, 2019.  El Salvador's termination decision was announced on Jan. 18, 2018, with a termination date of Sept. 9, 2019. 

The TPS beneficiaries have hundreds of thousands of U.S. born children, with 192,000 born to El Salvadoran beneficiaries alone. Ending TPS status would have the effect of making parents have to choose to leave their behind or take them back to unknown and unsafe conditions. 

The Government, in making its decisions, ignored its own travel advisory warnings of unsafe conditions in the countries being considered, i.e. the did not consider current country conditions. 

On the Equal Protection claim, the court found the White House put pressure on the decisions made by Homeland Security. The court further found evidence that President Trump harbors animus against non-white, non-European aliens which influenced the decision to end TPS status. See October 3, 2018 New York Times article Judge Blocks U.S. from Ending Protections for some Immigrants. See also Judge Temporarily Blocks Termination of TPS for Suden, El Salvador, Haiti, Nicaragua, Klasko Law Immigration Update. 

 Accrual of Unlawful Presence and F and J nonimmigrants:

As of August 9, 2018, the U.S. government has changed the policy on how those present on an F or J non immigrant visa can fall out of status. The final policy holds unlawful presence will begin to accrue the day after a student stops pursuing a course of study or other violates his or her immigration status. 

NAFSA memo and guidance on Accrual of Unlawful presence

Trump v. Hawaii, No. 17-965, June 26, 2018 (S. Ct.)

In this case the Court upheld the third iteration of the President's travel ban. The 5-4 decision upheld the power of the President under 8 USC 1182 (f) that gives the President broad power to suspend the entry of foreign nationals. This section of the INA vests the President with "ample power to impose entry restrictions in addition to those enumerated elsewhere in the INA."

The Court reasoned in part as follows: 

Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq,
Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry  restrictions, the Proclamation includes numerous exceptions for various  categories of foreign nationals.

Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.

The third iteration of the ban had already been implemented per order of the Court, so there was no immediate change. An analysis of why the Court felt compelled to hold as they did can be found at Lawfare, Reflections on the Travel Ban Case and the Constitutional Status of Pretext.

See the NAFSA page for a complete summar of current countries affected by the indefinite entry bar. 

Temporary Protected Status (TPS)

Temporary Protected Status (TPS) is available to people who are admitted to the U.S. from designated countries where there has been war, political upheaval or disaster that make it unsafe for a person to return.  The countries and the time during which a person has protected status under this program varies according to the country and changes from time to time. It is important that if you came into the U.S. from a TPS country that you ensure your status is current and that you apply for any extensions that might be available.  Should TPS status cease then you would no longer be permitted to work based on that status. Current temporary protected status countries are as follows: El Salvador; Haiti; Honduras; Nepal; Nicaragua; Somalia; Sudan; South Sudan; Syria and Yemen.

If you last resided in a designated country, but were not a national of that country you may also be granted temporary protected status.

Eligible individuals must apply to the U.S government to obtain this protection.[1]  With this status, the following benefits apply:

  •      You cannot be removed from the U.S.
  •       You can obtain employment authorization (EAD)
  •        You may obtain travel authorization.

It is important to note that once you are granted TPS, you must re-register during each re-registration period to maintain TPS benefits, so it is important to check eligibility dates. Human Resources will send out notices when it appears an employee’s status might call for renewal.

Deferred Action for Childhood Arrival (DACA)

Persons in status under DACA are eligible to work. In addition, many universities have students who are here on DACA status. The University does not seek information about lawful status as a condition of admission.

The U.S. government is still accepting renewal applications from DACA holders.[2]  The U.S. government is not currently accepting first-time requests from individuals who have never obtained DACA status.


Human Resources

Employees may contact Lisa Jordan at 202-319-5050 if the question involves TPS extension.

International Student and Scholar Services

Employees or students here on non-immigrant visas are directed to ISSS at 202-319-5618.

http://international.cua.edu/isss/index.cfm

Outside Resources

CASA of Maryland standing Clinic Tuesday at 7:00 am-8151 15th Ave. Hyattsville, MD

CASA ready to Help Dreamers

Hogar Immigrant Services, Catholic Charities of Arlington Diocese, Virginia.  https://www.hogarimmigrantservices.org/legal-services

American University Immigrant Justice Clinic

GWU Immigration Clinic (only asylum and deportation or removal proceedings)

CASA de Virginia - 1455 Old Bridge Rd, Suite # 203, Woodbridge, VA 22192
Adjustment of Status, Consular Processing, Deferred Action for Childhood Arrivals (DACA), Employment authorization, Family-based petitions, Naturalization/Citizenship

Other Resources

On TPS: https://www.uscis.gov/humanitarian/temporary-protected-status

On DACA: https://www.dhs.gov/topic/deferred-action-childhood-arrivals-daca

 

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(Note from Editor: This section contains recent immigration cases and commentary-please check back for updates)

 NAACP v. Trump and Princeton University v. USA, Case no. 1:17-cv-02325, (U.S. Dist. Court, DC) filed April 24, 2018. In finding the Government's September 2017 recission of DACA unsupportable, the court stated as follows: 

 The Court further concludes that, under the APA, DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful. Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program. Thus, plaintiffs’ motion for summary judgment will be granted in part, and the decision to rescind DACA will be vacated and remanded to DHS. Vacatur of DACA’s rescission will mean that DHS must accept and process new as well as renewal DACA applications. The Court will stay its order of vacatur for ninety days, however, to allow the agency an opportunity to better explain its rescission decision.

For the current status on DACA see the National Immigration Law Center. Renewals are currently being accepted. 

 

May 2018 USCIS Memo and NAFSA commentary on same on accrual of unlawful presence of F, J and M non-immigrants. 

April 13, 2018 ACE Letter to DHS requesting timely processing of all DACA renewal applications. 

ICE Policy Memorandum (PM-602-0157) Feb. 28, 2018 Contracts and Itineraries Requirements for H-1B Petitions Involving Third Party Worksites *

Contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation.
When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner will need to show that:
• The petitioner has a specific work assignment in place for the beneficiary;
• The petition is properly supported by a Labor Condition Application (LCA) that
corresponds to such work; and
• The actual work to be performed by the H-1B beneficiary will be in a specialty
occupation based on the work requirements imposed by the end-client who uses the
beneficiary’s services. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

 Regents of California and Napolitano v. DHS, (U.S. Dist. Court, N. California) (Jan. 9, 2018)
Plaintiffs sought provisional relief from governmental recission of DACA. Government moved to dismiss, but court granted some provisional relief.  This case is one of 5 different cases that ended up before the same judge. From page 13 of the injunction: 

UC Plaintiffs allege they have invested considerable resources in recruiting students and staff who are DACA recipients, and that these individuals make important contributions to the University. As DACA recipients lose their work authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital and productivity. They further allege that students who lose DACA protections will be unable “to plan for the future, apply for and obtain internships and certain financial aid and scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may withdraw from the University altogether.

At page 29 the Court found the plaintiffs had a likelihood of success on the merits and that plaintiffs had demonstrated irreparable harm.  

Plaintiffs have shown a likelihood of success on their claim that the rescission
was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.
Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and capricious.

 And at page 44-45

 Delays in this case, however, have made it impossible to send a final judgment to our
court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion without giving plaintiffs an opportunity to examine the complete administrative record. Government counsel, however, succeeded in obtaining an order from the Supreme Court postponing proceedings on completing the administrative record until after ruling on its FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative record. Although plaintiffs are likely to prevail on even the truncated administrative record, as set forth above, our appellate court might disagree with that conclusion or the agency might seek to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all flaws, if any more there be, lurking in the whole record. One such possibility suggested by plaintiffs is that the rescission was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. A presidential tweet after our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus. These theories deserve the benefit of the full administrative record. It will be impossible to litigate this case to a fair and final conclusion before March 5.

***

For the reasons DACA was instituted, and for the reasons tweeted by President Trump,
this order finds that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one thousand individuals per day, on average, will lose their DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status.
This would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services.

And at page 46, Provisional Relief Ordered: 

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.
Nothing in this order prohibits the agency from proceeding to remove any individual,
including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency from granting advance parole in individual cases it finds deserving, or from granting deferred action to new individuals on an ad hoc basis.
The agency shall post reasonable public notice that it will resume receiving DACA
renewal applications and prescribe a process consistent with this order. The agency shall keep records of its actions on all DACA-related applications and provide summary reports 

Client Alert, Klasko Immigration Partners; Nov. 3, 2017 on the USCIS 10-23-17 Policy Memo on Deference to Prior Adjudications

International Refugee Assistance Project v. Trump (D. Md. October 17, 2017

Memorandum and Opinion granting-in-part and denying-in-part Plaintiffs' Motion for a Preliminary Injunction. Plaintiffs, consisting of twenty-three individuals and seven organizations, challenged the President's Proclamation 9645, which indefinitely barred the entry into the United States of foreign nationals from Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela, because of identified security inadequacies related to terrorism and other public-safety threats. The court issued a preliminary injunction barring enforcement of Section 2 of the Executive Order, which was the section banning foreign nationals from predominantly Muslim countries.  

Order Granting TRO, Hawaii v. Trump, Case # 17-00050, (U.S. Dis. Ct. Hawaii) 10-17-17 

This TRO prevents the administration from restricting the entry of travelers from all the predominantly Muslim countries included in the ban, so the ban only applies for now to travelers from North Korea and Venezuela. This is a nationwide TRO. The court found that the ban contained in the Executive Order issued Sept. 24, 2017 did not contrain sufficient findings that the entry of the foreign nationals from the six specified Muslim countires would be detrimental to the interests of the U.S. The ban contained a restriction on entry for an indefinite time period. At pages 230 the court noted as follows; 

First, EO-3, like its predecessor, makes “no finding that nationality alone
renders entry of this broad class of individuals a heightened security risk to the
United States.” Hawaii, 859 F.3d at 772 (emphasis added) (citation omitted).
EO-3 “does not tie these nationals in any way to terrorist organizations within the six
designated countries,” find them “responsible for insecure country conditions,” or
provide “any link between an individual’s nationality and their propensity to commit
terrorism or their inherent dangerousness.

Second, EO-3 does not reveal why existing law is insufficient to address the President’s described concerns. As the Ninth Circuit previously explained with respect to EO-2, “[a]s the law stands, a visa applicant bears the burden of showing that the applicant is eligible to receive a visa . . . and is not inadmissible.”

Third, EO-3 contains internal incoherencies that markedly undermine its
stated “national security” rationale.16 Numerous countries fail to meet one or more
of the global baseline criteria described in EO-3, yet are not included in the ban.

NAFSA page for a complete summary of the indefinite entry bar. 

 

 DACA

Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) Sept. 5, 2017**

FAQ on DACA Rescission*

Press Release on Recission *

Letter from U.S. AG to DHS*

Klasko Newsletter: Deferred Action for Childhood Arrivals to be Phased Out Beginning on March 5, 2018*

Jackson Lewis: Sept. 6, 2017 Newsletter on DACA

ACE Issue Brief Rescission of DACA*

 

 

 

 

 

 updated 10-1-18