Immigration
IMMIGRATION REFORM UPDATES
President Trump’s decision to end the Deferred Action for Childhood Arrivals (DACA) program has served as a catalyst to reform the country’s broken immigration system quickly. Over the past five months since the announcement that DACA would be terminated on March 5, popular and political support for DACA gained momentum. The President also expressed a desire for fair treatment of DACA recipients. However, and despite the headlines, talking points, and rhetoric, DACA is still set to expire on March 5, and Congress appears to be even further from consensus than when they started. (But see story, below, on the DACA injunction.)
There have been at least 20 immigration reform bills introduced in Congress, and none of them is perfect. And, the White House issued its framework for immigration reform, which includes commitment of funds for border security, status for 1.8 million DREAMers, reduction of family-based immigration to the nuclear family, and elimination of the Diversity Visa lottery.
In the wake of this activity, Senate Majority Leader Mitch McConnell allowed four immigration bills to come up for a vote in the Senate recently. The McCain/Coons attempt at a clean Dream Act fell eight votes short of passing. A bipartisan proposal from Senators Collins, Durbin, Graham, and Flake to create a path to citizenship for DACA recipients with some border funding and changes to family-based immigration missed passage by six votes. Senator Grassley introduced the White House framework as its own bill but it went nowhere. A fourth bill dealing only with sanctuary cities made it to the floor, but also failed.
If these votes are an indicator of things to come, it is unlikely that Congress will reach a DACA solution before March 5.
DACA Lawsuit Results in Nationwide Injunction
Judge Nicholas G. Garaufis of the federal district court in Brooklyn has stepped into the DACA debate and issued an injunction ordering the Administration to keep DACA in place as it was before the Administration announced termination of the program. However, United States Citizenship and Immigration Services (USCIS) has announced that it is not accepting DACA requests from individuals never granted DACA. The injunction from Judge Garaufis is similar to one issued by Judge William Alsup of the federal district court in San Francisco.
CBP Sending Compliance Emails to Warn VWP Entrants of I-94 Expiration Date
U.S. Customs and Border Protection (CBP) recently announced that it has implemented two new traveler compliance initiatives to allow Visa Waiver Program (VWP) (ESTA) travelers to check the status of their stay in the United States. A new feature added to the I-94 website under the “View Compliance” tab allows VWP travelers to check the status of their admission to the United States. This check will inform travelers of the number of days remaining on their lawful admission or the number of days they have remained past their admitted until date. In addition, CBP is now sending email notification to VWP travelers who are still in the United States 10 days prior to the expiration of their lawful admission period according to its records, and advising that the foreign national must depart the United States unless a pending or approved petition allows the person to remain (such as having applied to adjust as an immediate relative). CBP has taken these steps as part of CBP’s Traveler Compliance Check launched in May 2017 to prevent travelers from overstaying.
Consular Officers Given Greater Flexibility on Validity Period of Nonimmigrant Visas
A Department of State (DOS) revised note provides guidance to consular officers on how and when to issue nonimmigrant visas for a shorter period of time, or a fewer number of admissions (entries), than that prescribed on the basis of reciprocity if warranted in an individual case. DOS advises that limitations of visa validity are most appropriate when the applicant’s bona fides in the immediate near term are not in question, but the stability of the applicant’s longer-term ties to his or her residence abroad are in doubt. Other scenarios also could apply. Normally, the U.S. prescribes the period of visa validity and number of entries consistent with how that foreign country treats U.S. citizens in the same or similar visa category. While consular officer decisions are not appealable, officers who identify due cause for such limitations are required to obtain concurrence from a consular manager.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]