*UPDATE: On November 20, 2017, U.S. District Judge William Orrick III issued a permanent injunction against the Executive Order, Enhancing Public Safety in the Interior of the United States.  This ruling follows the Judge’s previously granted preliminary injunction and prevents the Trump administration from halting funding to cities that limit cooperation with U.S. immigration authorities to protect individuals who are not authorized to be in the U.S.  The Department of Justice may appeal this ruling in the coming weeks and we will provide updates as information becomes available.

*UPDATE — Members of the American Immigration Lawyers Association (“AILA”) are reporting that U.S. Citizenship and Immigration Services (“USCIS”) has recently been denying Forms I-131, Application for Travel Document (“Parole” or “AP” Document), if the applicant has departed the U.S. and traveled abroad during the pendency of the AP Application.  In other words, if an individual has filed for an initial or renewal AP Document and departs the U.S. prior to receiving the AP Document, USCIS has recently been denying the AP Document.  Such individual would need to return to the U.S. using his/her underlying nonimmigrant visa (such as H-1B/H-4/L-1A/L-1B/L-2 visa) for admission to the U.S.  While this practice seems to depart from existing standards, USCIS is indicating that such denials are proper.  This change falls in line with our previous review of the Executive Order, Enhancing Public Safety in the Interior of the United States, issued by the President on January 25, 2017.   Specifically, we noted:

*For employment-based immigration matters, there may be an unintended consequence of the recent internal memoranda:  individuals who have filed Form I-485, Application to Register Permanent Residence or Adjust Status (“Green Card” Application) generally also file Form I-131, Application for Travel Document (“Parole” or “AP” Document).  After the filing of a Green Card Application and obtaining the Parole Document, many individuals present their Parole Documents, along with unexpired and valid passports, for return admission to the U.S., in lieu of presenting their nonimmigrant visas (i.e., H-1B/H-4/L-1A/L-1B/L-2/O-1/etc. visas).  This practice has been widely accepted for many years.  However, the internal memoranda appear to increase the scrutiny applied to such individuals.  Accordingly, individuals who have pending Green Card Applications may be required to present their underlying nonimmigrant visas for return admission to the U.S., instead of presenting their AP documents obtained in connection with such Green Card Applications.

As such, individuals who file for initial or renewal AP Documents may need to avoid departing the U.S. during the pendency of the AP Document application in certain instances.  AILA indicates that it will continue to pursue this matter in its liaison discussions with USCIS. As the situation remains fluid, we will provide updates as information becomes available.

*UPDATE – On April 25, 2017, a federal judge issued a preliminary injunction against a portion of the Executive Order, Enhancing Public Safety in the Interior of the United States, issued by the President on January 25, 2017.  Specifically, U.S. District Judge William Orrick III blocked the current administration form withholding funding on “sanctuary cities” that limit cooperation with U.S. immigration authorities to protect individuals who are not authorized to be in the U.S.   According to Judge Orrick, the Executive Order targeted broad categories of federal funding for sanctuary governments and and that the plaintiffs challenging such order were likely to succeed in proving it unconstitutional.   The current administration issued a statement criticizing Judge Orrick and indicated that the administration would “win at the Supreme Court level at some point.”  As the situation remains fluid, we will provide updates as information becomes available.

*On February 20, 2017, Department of Homeland Security (“DHS”) issued two internal memoranda implementing the Executive Orders entitled “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States,” issued by the President on January 25, 2017. These internal memoranda provide guidance for all DHS personnel concerning the enforcement of U.S. immigration laws.  Under the new policies, several changes are expected, some of which include:

  • Increased use of “expedited removal” procedures which may result in a larger number of individuals being deported from the U.S. without any legal or court proceedings;
  • Stricter use of “catch and release” procedures for undocumented individuals who are awaiting court proceedings which may result in a larger number of individuals being detained and potentially straining the government’s limited detention resources;
  • Broadening discretionary authority of DHS officers in determining initial claims of individuals seeking asylum which may result in fewer protections afforded to asylees;
  • Increased use of deportation procedures for non-Mexican individuals to Mexico if such individuals entered the U.S. through Mexico;
  • Strengthening of federal government’s ability to empower state and local law enforcement agencies to perform certain immigration enforcement functions.
  • Limiting the use of “Advance Parole” by tightening the definition of “urgent humanitarian reasons” or in furtherance of a “significant public benefit.”*

Notably, the internal memoranda leave President Obama’s executive order relating to “DREAMers” intact.  In other words, Deferred Action for Childhood Arrivals (“DACA”) continues to stand such that certain individuals who entered the U.S. as children and meet several guidelines may request consideration of deferred action and employment authorization.

*For employment-based immigration matters, there may be an unintended consequence of the recent internal memoranda:  individuals who have filed Form I-485, Application to Register Permanent Residence or Adjust Status (“Green Card” Application) generally also file Form I-131, Application for Travel Document (“Parole” or “AP” Document).  After the filing of a Green Card Application and obtaining the Parole Document, many individuals present their Parole Documents, along with unexpired and valid passports, for return admission to the U.S., in lieu of presenting their nonimmigrant visas (i.e., H-1B/H-4/L-1A/L-1B/L-2/O-1/etc. visas).  This practice has been widely accepted for many years.  However, the internal memoranda appear to increase the scrutiny applied to such individuals.  Accordingly, individuals who have pending Green Card Applications may be required to present their underlying nonimmigrant visas for return admission to the U.S., instead of presenting their AP documents obtained in connection with such Green Card Applications.

As additional guidance relating to these memoranda becomes available, we will provide regular updates.  For any questions related to a specific case and potential strategies and alternatives, please feel free to reach out to us.

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