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On Wednesday, January 25, amidst a bevy of executive orders, President Trump signed one particular order promising to withhold federal dollars from “sanctuary jurisdictions.” The order, which according to the White House Briefing Room, is officially titled Enhancing Public Safety in the Interior of the United States, states that “the Secretary of Homeland Security shall, by no later than one year after the date of the executive order, ensure that sanctuary jurisdictions are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

To unpack the provisions of this order, one must first consider the meaning of a “sanctuary city,” as defined by the president’s administration, legal scholars, and immigration officials. Since the term does not necessarily have a set definition, it is important to consider all perspectives. The executive order, for one, leaves it to the secretary of Homeland Security to designate “sanctuary jurisdictions” based on whether they allow local officials to share people’s immigration status with the federal government.

Based on a 1996 law prohibiting localities from withholding such information, the Trump administration believes sanctuary cities to be clear violators of the law. But, long before the issuance of the executive order, there has been much contention surrounding these claims. According to Barry Friedman, a constitutional law scholar who runs the Policing Project at NYU, “The federal government can’t demand that state officials or local officials do their work.”

President-elect Trump’s hardline statements on immigration, which are often peppered with shifting details, have left millions of Americans uncertain about their future status in the U.S. More than 700,000 undocumented immigrants who came to the United States as children are protected currently by Consideration of Deferred Action for Childhood Arrivals (“DACA”), established by President Obama, and another four to five million were eligible for protection under a similar program for parents of U.S. citizens and lawful residents.  Many of these families’ information could be stored in federal systems, allowing for targeted removal under the Trump administration.

Below are two of the less discussed areas where some of the national debate over immigration policy may take place under the soon-to-be President Trump:

Sanctuary Cities:

Last month, in the wake of the terrorist attack on a Berlin Christmas market, President-elect Donald Trump was asked by reporters if he was rethinking or reevaluating his plans to establish a registry for Muslim immigrants and temporarily ban Muslim immigrants from entering the United States.  The President-elect responded to the press’ inquiries, saying “You know my plans all along,” then went onto say that the recent attack, for which the Islamic State later claimed responsibility, had vindicated his proposed ban.

Muslims and advocates across the country have expressed anxiety at not quite knowing what Trump means when he says “Muslim ban.”  A year ago on the campaign trail, Trump said he wanted a “total and complete shutdown of Muslims entering the United Stated until our country’s representatives can figure out what is going on.”  Later, Trump and his senior aide sought to soften the proposal, suggesting that he would support a ban on immigration only from countries that has been “compromised by terrorism.”  Six months ago in a “Meet the Press” interview, when asked whether he has rolled back his calls for a Muslim ban, Trump responded saying he had viewed it instead as an expansion of his initial proposal.  Today, the statement proposing a “complete shutdown of Muslim immigration remains on Trump’s website and the President-elect has yet to clarify how exactly he would address the issue as President.

Furthermore, senior Trump aide, Kellyanne Conway, stated that Mr. Trump would not seek to ban an immigrant based on religion, but rather would seek a ban pertaining to “what he said later about it when he made it much more specific and talked about countries where we know they have a higher propensity of training and exporting and in some cases harboring terrorists.”  Such mixed messages have left Muslim community leaders puzzled and apprehensive.  While many people have interpreted the Muslim ban as an intention on Trump’s part to revive the NSEERS system, the Bush-era registry used to track Muslims and Arabs, which was dismantled by President Obama, others believe the ban could involve more severe repercussions. 

On December 12 2016, the U.S. Department of Education (“DOE”) announced that it is no longer recognizing the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  This decision affects more than 16,000 international students in the United Stated attending nearly 130 Student and Exchange Visitor Program (SEVP)-certified schools and programs that are accredited by the Accrediting Council for Independent Colleges and Schools (ACICS).

While most SEVP-certified schools are not required to obtain accreditation and may provide evidence in lieu of accreditation, there are two major instances, both involving immigrant students, when it is required:

  1. Accreditation is required for all English as a Second Language (ESL) programs, per the Accreditation of English Language and Training Programs Act. This act states that all ESL programs must possess accreditation by a regional or national accrediting agency recognized by the Department of Education.

The Department of Homeland Security (DHS) is removing regulations relating to an obsolete special registration program created after 9/11 to track noncitizen men from predominantly Muslim countries.  NSEERS, which DHS has not used since 2011, has for many years been deemed redundant, used to capture data manually that was already captured through automated systems, nonetheless the structure has remained intact until now.  The program has been discontinued, for these reasons and for reasons pertaining to NSEERS’ inability to provide a discernible public benefit, as the program no longer provides an increase in security in light of DHS’s evolving assessment of the threat posed to the United States by international terrorism. 

In August 2002, less than a year after the September 11, 2001 terrorist attacks, the former Immigration and Naturalization Service (INS) finalized the proposed program to require designated nonimmigrants to be fingerprinted and photographed and to provide additional biographical information.  The rule also authorized INS to designate certain ports of departure for nonimmigrants subject to the program.  The following months, INS announced by way of a Federal Register notice, that the new program would be applied to those who were subject to the earlier registration program (first established in 1991)—nonimmigrants from Iraq, Iran, Libya, and Sudan—and added nonimmigrants from Syria.  Between November 2002 and January 2003, INS added another 20 countries to the compliance list, bring the total to 25 countries.

Once the responsibility for administering NSEERS was transferred to the Department of Homeland Security (DHS) in 2003 as part of the Homeland Security Act of 2002, DHS determined that automatically requiring 30-day and annual re-registration for designated nonimmigrants was no longer necessary.  Leading up to 2011, DHS began to utilize a more tailored system in which they would notify nonimmigrants subject to the program to appear for re-registration interviews where DHS deemed it necessary to determine whether they were complying with the conditions of their status and admission.

Throughout his campaign, Donald Trump referenced his tearing up of NAFTA as a positive change of policy for border city voters who have long feared the effects of globalization on their local economies.  Now that the end of NAFTA could, in fact, become reality, many residents and lawmakers living in border cities, such as Laredo, El Paso, and Nogales, have come forward in support of the 1994 treaty, citing examples of its positive effect on their booming economies.

Local officials in Laredo, Texas say roughly 1 in every 3 jobs benefits from international trade.  Laredo, which is the nation’s busiest inland port, sees an average of 14,000 tractor-trailers cross the border daily; it is also the only city along the U.S.-Mexico border that the President-elect visited during his campaign.  Although President-elect Trump’s assessment of NAFTA may have resonated with voters in the Midwest, who lost their jobs after several factories were moved to Mexican border cities following the passage of NAFTA, it did not have the same effect on the inhabitants of such border cities, who for years have witnessed their cities flourish under the precepts of the treaty.

The mayor of Laredo, Pete Saenz, described the border city as “NAFTA on wheels,” claiming that the backbone of the city is free trade across the border.  Laredo is an exemplary city for viewing the effects of the trade treaty.  Busy industrial parks show the pipeline for imported and exported goods.  Just four years after NAFTA was signed by President Bill Clinton and approved by the then Republican-controlled Congress, the Census Bureau named Laredo the country’s second-fastest growing area. 

In November, the Supreme Court heard a class-action challenge brought forth by thousands of immigrants, many of whom are living in the United States legally, who were kept in detention without a real opportunity to vouch for their release.

As it stands, federal law grants immigration authorities a great deal of leeway in measures they may take to detain foreign-born people.  The Supreme Court’s task was to determine what limits may exist to stymie that authority.  On December 12, 2016, the Supreme Court issued an order in this still-pending case, asking lawyers for the federal government and the American Civil Liberties Union (ACLU) to file a new round of legal briefs addressing whether the Constitution would require a hearing in front of a judge—or even a release, in the event that the government fails to present strong enough evidence that the person shouldn’t be released.

At the center of the case is Alejandro Rodriguez, who was a year old when his parents brought him to the U.S. from Mexico, and 9 when he became a legal permanent resident.  After running into trouble with the police for a joyriding and a minor drug offense, Rodriguez was soon placed in immigration detention for three years and faced deportation.  Due to his convictions, he was subject to “mandatory detention” under immigration law and was therefore denied a chance to stand in front of a judge nor ask for release on bond.

Happy New Year!  It’s never too early to start preparing for the H-1B Cap for Fiscal Year 2018, and our immigration attorneys are happy to aid your in the process.  Demand for the H-1B visa has steadily increased over the years; last year for instance, only about 36% of the H-1B petitions were selected in the lottery.  Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, which is April 3, 2017 this year.

The H-1B is a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation.  Due to the ever-increasing demand for the visa, it is important the employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date.  Some of the different types of employees eligible for H-1B visas are F-1 Students and L-1B visa holders.

Students, particularly those on F visas, currently working for you pursuant to an approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition.  The reason being that if you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT.  Even when employees may extend their OPT, the employer is still advised to file an H-1B for the 2018 fiscal year, giving the employees two opportunities to obtain the H-1B.  In the event that more applications are filed than visas available and student employees do not obtain the H-1B this year, then the OPT extension will serve as a back-up and the employer may file for the H-1B again next year.

On November 29, 2016, the U.S. Customs and Border Protection implemented a requirement for all Chinese passport holders who carry a maximum validity (10 year) B1 (business) and/or B2 (pleasure) visa to have a valid Electronic Visa Update System (EVUS) enrollment before traveling to the United States.  Travelers using passports from Hong Kong, Macau SAR, Taiwan, or any other passport other than a Peoples Republic or China passport are not affected by the EVUS enrollment requirement.

The Electronic Visa Update System is the online enrollment system by which Chinese nationals holding B 1 and/or B 2 visas valid for 10 years update basic biographic information, enabling their travel to the United States.  Since the implementation of the EVUS requirement, nationals of China holding such 10-years visas will not be allowed to travel to the United Stated without valid EVUS enrollment. 

Earlier this year on October 20, 2016, the following rules and notices were published in the Federal Register, setting the general regulatory framework for EVUS and designating the first group that will be subject to the requirements.

Immigrants across the country are regularly denied bail or offered bail that’s too expensive.  Last Spring, news broke of a State Senator from Queens, New York, lobbying to scrap the obsolete bail bond system of holding people who could not afford bail, many of whom were immigrants, in jail before their trial.

State Senator Michael Gianaris, in an interview with Vice News, called the current regime of setting bail in New York “something left over from England in the Middle Ages.”  Now, California’s district courts are starting to take apart the same archaic bail-setting schemes that left so many disenfranchised New Yorkers in prison before they were proven guilty of the accused crime.

Unlike in criminal court, where those charged often hire bail bondsmen and only have to pay 10 percent of the total bail amount, immigrants detained by Immigration and Customs Enforcements (ICE) often have to pay the full amount of a bond.  Most bond companies require collateral such as a house or a car, which many low income immigrants lack, resulting in a scarcity of bond companies geared toward immigrants.