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This alert has been provided by the BAL U.S. Practice Group.
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Nearly six months after the U.S. Supreme Court ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program was unlawful, the government refused to comply with the ruling, sending Dreamers back to court to enforce it.
On Dec. 4, a federal court in New York ordered the government to fully reinstate DACA to its Obama-era terms. Three days later, the Department of Homeland Security announced it would comply with the order and begin to accept first-time DACA requests and restore other terms of the program it had taken away, such as “advance parole,” which allows Dreamers to travel abroad and return to the U.S., thereby opening a narrow pathway for permanent residence for a small class of Dreamers. Meanwhile, President-elect Joe Biden has promised to reinstate DACA on his first day in office, to work toward a permanent legislative fix and provide a pathway to citizenship for undocumented immigrants.
Despite these indisputable victories, here’s why it’s too early to celebrate. An existential threat to DACA looms in the form of a pending lawsuit in Texas federal court that directly grapples with whether the original DACA program is lawful in the first place—a question no court has addressed (although three dissenting Supreme Court Justices characterized DACA as “unlawful from its inception”).
The Texas court’s history with DACA-related litigation does not bode well for Dreamers: In 2015, Judge Andrew S. Hanen blocked the Obama administration from introducing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, an expansion of DACA that shielded undocumented parents of U.S. citizens and green card holders from deportation. The decision only narrowly survived appeal, when the Fifth Circuit Court of Appeals agreed and an eight-member Supreme Court (following the death of Antonin Scalia) split evenly, leaving in place the injunction on DAPA. The expanded program never took effect.
After President Trump took office, his Acting Secretary of Homeland Security issued a September 2017 memorandum rescinding the DACA program. But the rescission was immediately challenged and a judge in California ordered the administration to maintain the program. Additional injunctions followed, requiring the government to continue to accept renewal applications. In response, Texas and other conservative states filed a new complaint in the Texas court, this time seeking to dismantle DACA as “unlawful.” In August 2018, Judge Hanen ruled that DACA “violates the substantive provisions of the Administrative Procedure Act,” but somewhat surprisingly left DACA in place.
Questioning why the states did not challenge DACA itself in their original 2014 suit against DAPA, he noted the potential for significant hardship to the estimated 800,000 Dreamers, and concluded that a temporary injunction would not repair an “egg [that] has [already] been scrambled.” Importantly, however, Judge Hanen also said that “DACA and DAPA are basically identical, and there is no legal ground for striking DAPA that wouldn’t apply to DACA.” The states are now asking the court to declare that DACA is unlawful and order its termination. A hearing took place Tuesday, Dec. 22.
The stakes could not be higher for Dreamers. Judge Hanen has already signaled that DACA is likely to suffer the same fate as DAPA and could ultimately strike down the program. But after astute advocacy by Dreamers’ attorneys at today’s hearing—in particular focusing on nuanced conceptions about prosecutorial discretion, employment authorization, and potential legal remedies flowing from his decision—Judge Hanen’s task just got more complicated. Moreover, Texas and the other plaintiff states are requesting that the judge stay his decision for a two-year period, during which no additional applications or renewals would be entertained. If the case winds up in the Supreme Court, it will be a different and more hostile forum with the addition of Justice Amy Coney Barrett, who, as a judge on the Seventh Circuit Court of Appeals, authored a 40-page dissent siding with the Trump administration on the controversial pubic charge rule.
Of course, the battle will continue—and with renewed vigor under a new administration that has promised to “reinstate” DACA and protect Dreamers. All sides agree that only Congress can provide a permanent solution for Dreamers, and it remains to be seen whether legislative relief will be possible in the current hyper-partisan environment.” Meanwhile, despite overwhelming public support for DACA and repeated public advocacy by U.S. businesses urging the government to keep the program in place, Dreamers continue to live a nightmare of uncertainty.
This article was originally published in the California Business Journal.
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.
The U.S. immigration system is at a critical crossroads, and the upcoming election will decide which path it takes into the foreseeable future.
In the last four years, the Trump administration has dramatically reshaped business immigration by introducing executive actions and changes at the administrative level that have curtailed virtually every route for high-skilled foreign workers. The COVID-19 pandemic has compounded the restrictions and ground travel to a halt, with new travel bans and consulate closures that have further slowed visa and immigration processing, with demand further diminished by the COVID economic slowdown.
What should U.S. companies expect in the next four years? What additional changes would a second Trump term bring? What has Joe Biden promised in his immigration agenda? How do the candidates differ on the issues of high-skilled immigration, work visas and green cards, and how can companies plan for these changes? How will the ongoing COVID-19 emergency disrupt or inform the next president’s immigration agenda?
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On March 30, the State Department published new Foreign Affairs Manual (FAM) guidance for consular officers that changes the standard of proof for blanket L adjudications and is likely to increase the refusal rate for multinational companies with blanket L visa programs.
The previous guidance advised consular officers that L-1 visa adjudications based on blanket petitions should be determined on the basis of the “preponderance of evidence.” The revised FAM now places a higher burden on applicants, requiring them to demonstrate eligibility beyond a doubt. The new language instructs consular officers: “If you have any doubt whether an applicant has fulfilled his or her burden of proof, you must deny the visa.” 9 FAM 402.12-8(F).
The new guidance appears to be in line with the directives from the Trump administration to increase the restrictions on issuance of employment-based visas, both under the “Buy American and Hire American” executive order, which called for “rigorous enforcement” of immigration provisions relating to workers, and the “extreme vetting” directive on visa applications in the March 6, 2017 White House Memorandum “to rigorously enforce all existing grounds of admissibility and to ensure subsequent compliance with related laws after admission.”
As a result of these directives, companies have experienced a marked decline in L approvals, especially at U.S. consulates in India, where the number of L-1 visas issued declined from 51,981 to 41,523 from fiscal year 2016 to 2019—a 20% drop.
The new guidance not only increases the burden of proof—it may also make it harder for applicants to overcome consular officer concerns over visa eligibility. The new instructions give consular officers discretion over whether to even allow the applicant to present new evidence, and require that any new evidence be presented in the first visa interview, which would preclude consular officers from allowing the applicant to return in a later interview with new evidence:
If based on the applicant’s documentation, you have a reasonable basis for believing that the applicant has not provided sufficient proof that his or her application should be approved, you may give the applicant the opportunity to respond to questions or issues that may be quickly or easily resolved during the interview. However, if the questions or issues cannot be resolved during the interview, then you should deny the case per 9 FAM 402.12-8(G).
This is not the first time the State Department has attempted to strengthen standards for blanket L petitions. Last October, it quietly inserted language into the FAM that replaced the “preponderance of the evidence” standard with a “clear and convincing evidence” standard, but it withdrew this change the following month. This time, the department has come out with even stronger language, further raising the stakes for companies and requiring they prove visa eligibility to a near certainty. Companies that rely on blanket L visas to move personnel to U.S. operations should consult counsel to ensure that applications meet this new standard and to strategize around the likelihood of higher denial rates.
Jeffrey Gorsky is Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP.
The information contained herein 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 in 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.
For the past year, U.S. Customs and Border Protection (CBP) has been refusing to process L-1 petitions for Canadian nationals who have previously held L-1 status with the same employer. This abrupt and unannounced shift has caused major delays for companies transferring Canadian executive, managerial, and specialized-knowledge personnel to the U.S.
The situation, however, may be changing, at least for certain Canadian L visa holders who work less than six months per year in the U.S. At several ports of entry (POEs), CBP is now consistently allowing so-called “intermittent” Canadian L holders to renew their L-1 status at the border.
Under longstanding regulations, multinational companies have been able to move key Canadian staff to the U.S. quickly and reliably by having their L petition adjudicated by a CBP officer without prior approval by U.S. Citizenship and Immigration Services or applying for a blanket L from a U.S. Consulate. Furthermore, CBP has historically permitted Canadian L-1 holders to renew their status by simply returning to a POE and submitting another L-1 petition; again, without the need to file a lengthy petition with USCIS or wait for a consular appointment. This process allowed Canadian L visa holders to conveniently renew their L-1 status during business or holiday travel. CBP is now turning away Canadians seeking L renewals and instructing their employers to file an L-1 extension of stay petition with USCIS.
However, recent trends indicate CBP will now renew “intermittent” L-1 petitions. Initially this policy was applied inconsistently, though as of late, CBP officers at several ports of entry are adjudicating intermittent L visa renewals.
Intermittent L-1 status allows employees who reside in Canada to work in the U.S. for shorter periods not to exceed six months in any given year. An added benefit of being classified as intermittent is that the L status is not subject to the same five/seven-year maximum stay limits and may be extended indefinitely; again, as long as the employee spends less than six months per year in the United States. Canadians seeking to classify as intermittent L-1s must document all entry and exit dates during their previous L-1 visa validity period, demonstrating their total number of days in the U.S. during the preceding period of admission.
CBP border processing is an important option for companies to efficiently move their sales, engineering and other critical personnel between their Canadian and U.S. operations. Companies are encouraged to work with their BAL professional to determine whether their Canadian employees are eligible for border adjudication as intermittent L employees.
Timothy Thiel is an Associate Attorney in the Walnut Creek, Calif., office of Berry Appleman & Leiden LLP.
Foreign student enrollment at U.S. universities is on the decline for the first time in more than a decade. New enrollment of foreign students at U.S. universities dropped by 1% in the 2018-19 school year, 7% in 2017-2018, and 3% in 2016-17.1 This year, U.S. business schools saw a 13.7% drop in foreign student applicants, while Canada and Europe are increasing their pool of foreign applicants.2
U.S. business leaders are beginning to sound the alarm. Fifty-five deans of U.S. business schools and 15 CEOs of U.S. companies recently signed a letter to President Trump warning that the U.S. is losing global talent because of outdated and restrictive immigration policies.
Foreign students provide a talent pipeline of educated, diverse, skilled workers already acclimated to American life and equipped to join the U.S. workforce, especially in STEM fields, where U.S. companies currently have 3 million unfilled jobs. Foreign students, who typically pay full out-of-state tuition rates to attend U.S. universities with little to no financial aid, anticipate employment in the U.S. after graduation to recoup those costs. Immigration policies that make it harder for foreign students to remain and work in the U.S. after graduation will slow the talent pipeline and divert it to other countries. In a 2018 survey, 83% of U.S. universities cited visa delays and denials as a major concern for lower enrollment.
Options are already limited for foreign students graduating from U.S. universities—and the current administration has further curtailed those options. H-1B denial rates have soared under the Trump administration and the adjudication process has become increasingly challenging and unpredictable. The one-year Optional Practical Training (OPT) program, along with the two-year extension for students holding degrees in STEM fields, are important programs that provide practical training opportunities and an important work-authorization bridge for foreign graduates seeking H-1B visas. The Department of Homeland Security has signaled it intends to limit OPT programs. The agency also plans to restrict foreign students’ maximum period of stay to a fixed period, after which they would need to obtain a different visa status or leave the U.S. This would replace longstanding policy that allows them to stay for the duration of their studies.
Just as there is a global race for high-skilled workers, so is there intense global competition for young minds who will shape the future talent pool. At a time when many countries are easing their policies to attract foreign students—Canada allows three-year open work permits after graduation and a pathway to permanent residency, and the U.K. introduced two-year visas to live, work and seek jobs after graduating from a U.K. university—U.S. immigration policies are moving in the opposite direction. The policies of today will have a lasting impact on the ability of U.S. companies to attract and retain international talent for years to come, and this will inevitably impact the U.S. economy.
1 Institute of International Education (2019), “International Student Enrollment Trends, 1948/49-2018/19,” Open Doors Report on International Educational Exchange; Okahana, H., and Zhou, E. (2019), “International graduate applications and enrollment: Fall 2018,” Council of Graduate Schools.
2 Graduate Management Admission Council (2019), “Early Warning Signs: Winners and Losers in the Global Race for Talent.”
Carla Tarazi is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.