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This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
Despite a major win in the Supreme Court, which ruled on June 18 that the Trump administration improperly terminated the Deferred Action for Childhood Arrivals (DACA) program, Dreamers remain in limbo, their fate closely tied to the election that is two months away.
There are an estimated 800,000 Dreamers, and about 90% are working for U.S. employers. More than 100 leading U.S. companies have publicly urged the president to keep DACA in place, warning that ending the program would jeopardize the economic recovery from COVID-19. With nearly 30,000 Dreamers working in medical professions, terminating DACA would also, as they argued before the Court, harm the healthcare response and medical research related to COVID-19.
The Department of Homeland Security responded to its Supreme Court defeat by first issuing a memorandum on July 28 that stated it would continue to accept only renewal DACA applications from those who are already DACA beneficiaries, not initial applications from first-time applicants—the same arrangement that has been in place by court order since 2018 when the legal challenges began. Then last week, the government released further guidance confirming that it would continue to process renewal applications only, and will limit renewals to one-year employment authorization documents instead of the usual two-year duration.
The DHS response not only flies in the face of the Supreme Court ruling, it puts Dreamers in an even more uncertain situation, since up until the ruling, DHS was under court injunctions to keep the status quo in place, which meant issuing renewals for the normal two-year period. DHS appears to buying time while the government decides its next move. It remains to be seen how courts will view the July 28 memo, which is now the subject of multiple lawsuits.
Meanwhile, some Dreamers report that they are being turned away from jobs because of the uncertainty of DACA’s future. In this unsettled environment, employers need to make sure that they are not violating the anti-discrimination provisions of the Immigration and Nationality Act or employment law provisions by treating DACA recipients differently than others with valid work authorization.
Shortly after the Supreme Court ruling, President Trump said his administration would begin the process of terminating DACA again. DHS could take action to terminate DACA at any time. This is because the legal issue has never been whether the administration had the authority to terminate DACA—all courts have agreed that it does—only whether it followed proper procedures and provided a reasoned analysis to support its actions. If Trump gets a second term, there’s little doubt his administration would attempt to terminate DACA again—only this time, like the Muslim bans that took more than one version to correct their legal flaws, DACA’s termination would likely be upheld.
Guillermo Ortiz is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
EXECUTIVE SUMMARY
On June 18, the U.S. Supreme Court ruled that the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program was unlawful and must be vacated.
ANALYSIS
What is the immediate impact of the ruling?
In the near term, the ruling prevents the administration from ending the DACA program. Before the ruling, DHS was required to continue accepting renewal applications from individuals who had previously been granted DACA, but not new applications. The ruling means DHS will have to continue accepting renewal applications from DACA beneficiaries.
Will the government start accepting initial applications?
The ruling will likely require DHS to begin accepting initial DACA applications. However, it remains unclear whether this can happen immediately, or if additional procedural steps must be taken in the lower courts. DHS is expected to issue further guidance on this issue in the coming days.
Is the government allowed to terminate DACA?
Yes. The parties to the lawsuits, and the Supreme Court, agree that DHS had authority to terminate the program. However, the Court concluded that the termination was subject to review under the Administrative Procedure Act (APA). The subject of the lawsuit was whether the agency followed the proper procedure. The Court ruled that the agency violated the APA in its termination of the program.
Will the administration try again to end DACA?
Shortly after the decision was released, President Trump tweeted, “I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.” DHS could attempt to address the Court’s concerns and end the program in a different manner, but few are confident that the administration could achieve that result prior to the election.
Will Congress find a permanent legislative solution?
Only Congress has authority to provide a permanent solution for Dreamers that offers legal status in the U.S., and stakeholders have been encouraging lawmakers for years to find a bipartisan solution. It is impossible to predict at this time whether Congress will pass a law that grants some form of relief from removal to DACA beneficiaries, particularly in an election year.
Copyright ©2020 Berry Appleman & Leiden LLP. Government immigration agencies often change their policies and practices without notice. This document does not constitute legal advice or create an attorney-client relationship. Version: June 18, 2020.
This week, tens of thousands of people will flock to the Nevada desert to attend the Burning Man festival—an annual international attraction, drawing visitors from all over the world looking to take in the desert environment, artistic expression, and spectacular costumes. Locally, however, the event is also known for being a venue where the drug use is as experimental as the performance art.
Among the attendees of Burning Man and similar events around the country are non-U.S. citizens who may be unaware of the potentially dire immigration consequences of engaging in drug-related activity, particularly while on federal land in a state where marijuana is legal. Using, possessing, purchasing, or selling a controlled substance may be grounds for inadmissibility, visa denial, or deportation, and evidence of a drug offense may prevent an applicant from obtaining a green card or citizenship. Conflicts between state and federal law have created confusion over whether marijuana is still considered an illegal drug. There’s a misperception that marijuana use is no longer prosecuted, now that a majority of states have legalized medicinal or recreational marijuana. Thirty-three states1 have legalized medical marijuana, and 11 states2 and the District of Columbia have legalized adult recreational marijuana.
Federal law is a different story. Under federal law, marijuana is classified on par with heroin and LSD, as a Schedule I drug. In the immigration context, it’s important to understand that individuals may be deemed to have violated federal drug laws even if they have not been arrested, charged or convicted. For example, an individual who admits to having worked for a cannabis start-up in Colorado or to using marijuana at home in Arizona to treat the effects of chemotherapy may have admitted to conduct that constitutes a violation of federal law, potentially triggering immigration consequences. This is true even if the conduct was legal under state laws.
The current administration has signaled its lack of tolerance for drug activity by immigrants. In June 2017, U.S. Citizenship and Immigration Services began asking green card applicants if they have violated state, federal or foreign drug laws at any time. In 2018, Attorney General Jeff Sessions revoked Obama-era policy memos that discouraged federal prosecutors from prosecuting marijuana violations that were legal under state laws. In April of this year, USCIS clarified that marijuana-related violations will generally prevent citizenship applicants from proving they have “good moral character,” a requirement to naturalize.
Noncitizens should be aware of the immigration consequences of drug-related activity. Carrying a medical cannabis card, keeping drug paraphernalia, or posting drug-related photos or discussions on publicly available social media could open up a line of questioning from law enforcement if found. While it is not necessary to be on federal land to violate federal law, Burning Man takes place on federal land and is policed by federal Bureau of Land Management officers, increasing chances of encountering federal law enforcement.
As Burners ignite an effigy of “The Man” on the last Saturday of the event, foreign nationals in the crowd would do well to remember that drug activity could sacrifice their immigration status.
Ryan Harris is an Associate in the San Francisco office of Berry Appleman & Leiden LLP.
Melanie Beckwith is a Staff Attorney in the San Francisco office of Berry Appleman & Leiden LLP.
1 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia.
2 Alaska, California, Colorado, Illinois (effective Jan. 1, 2020), Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington.
The recent sting operation conducted by Immigration and Customs Enforcement (ICE) to catch foreign students that illegally secure Curricular Practical Training, or CPT, serves as a poignant reminder to employers about the potential pitfalls of hiring or continuing to employ these students.
In its undercover investigation, ICE set up a phony university, a Michigan-based school called the University of Farmington, that advertised “innovative” CPT programs for STEM (science, technology, engineering and math) graduates and offered enrollment with flexible classes that would not disrupt their careers. Prosecutors allege, however, that this fake university was a “pay-to-play” scheme that allowed foreign students to continue to live and work in the United States without satisfying the normal requirements that the immigration laws impose on all students seeking CPT.
This is not the first time that the government has leveraged this type of scheme. In 2013, the Department of Homeland Security created the University of Northern New Jersey to investigate foreign student visa fraud. The government has also raided legitimate schools it suspected of abusing the CPT process. In July 2011, for example, ICE raided the former University of Northern Virginia because it suspected that the school was issuing CPT to foreign students without following legal requirements.
Foreign students who secure CPT from these questionable programs face criminal charges and loss of lawful status, which puts them at risk for deportation. The question not addressed so far, however, is the potential liability of their employers. Ordinarily, employers that rely on a student’s CPT documentation should not be subject to civil or criminal liability, as long as the documentation reasonably appears to be genuine, and they have no reason to suspect the student secured the documentation unlawfully. Nevertheless, the widely disseminated news regarding ICE operations targeting fake universities or suspected violators could lead government authorities to assert that an employer knew or should have known that some documentation was illegally procured.
It is also important to note that employers referring candidates or employees to other employees who secured CPT in this manner may risk liability for aiding or abetting immigration violations. Likewise, employers that provide letters in support of such candidates for submission to the government may face liability for having made a false statement.
The bottom line is that employers need to devote more due diligence to all aspects of employing F-1 students under the CPT and Optional Practical Training (OPT) programs as part of their immigration compliance efforts.
Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.
BAL Partner Lynden Melmed testified Monday before the Maryland House of Representatives in support of high-skilled immigration.
The Economic Matters Committee held a hearing in connection with legislation that would impose reporting obligations on Maryland companies that hire H-1B and L-1 workers in the state.
Howard University Professor Ron Hira, a staunch opponent of H-1B visa programs, testified that companies pay H-1B workers below-market wages and thereby exploit the H-1B program to undercut American workers.
Mr. Melmed, who previously served as chief counsel of U.S. Citizenship and Immigration Services (USCIS), testified about the benefits of high-skilled immigration to the Maryland economy. He cited an example of BAL clients who launched their business at the University of Maryland, obtained H-1B status, and are now building their business in the state. Mr. Melmed also testified about the wide range of industries in Maryland that utilize the H-1B category.
“I have no doubt that high-skilled immigrants create jobs in Maryland and contribute to the state’s economy,” Mr. Melmed said. “They are smart, they are entrepreneurial, and they help Maryland companies compete in a global economy.”
States are playing an increasing role in immigration policy. From Deferred Action for Childhood Arrivals (DACA) to the Executive Order to refugee resettlement, states are more engaged than ever. The Maryland hearing represents one of the first efforts by a state legislature to engage on high-skilled immigration policy.
Read a transcript of Mr. Melmed’s full testimony here.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
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