General information

On May 24, 2017 John Kelly, the Secretary of Homeland Security, extended the Temporary Protected Status (TPS) granted to all Haitian nationals residing in the U.S. The current grant expires on July 22, 2017, so the extension would allow Haitian nationals to remain in the country until January 22, 2018 if they re-register.

The extension came after several members of Congress sent a letter to the Secretary Kelly urging the administration to extend TPS because of the severe economic and health conditions found in Haiti.

“TPS is a statutory mechanism that grants work authorization and protection against deportation to nationals of designated countries. TPS, however, does not grant permanent residency, citizenship, or any right to an ongoing immigration status.

The protection was first created by Congress when it passed the Immigration Act of 1990. This early version of the statute granted temporary protection to people unable to return to their home country due to political or environmental catastrophe. It has since been amended to allow the Department of Homeland Security (DHS) to designate a country for TPS when (1) it is unsafe for a national to return home due to an ongoing armed conflict; (2) when the state is not able to accept the return of its nationals due to a natural disaster or environmental catastrophe, and has requested TPS status; or (3) extraordinary and temporary conditions in a state prevent its nationals from returning safely.

The protection was first granted to Haitian nationals by the Obama administration in 2010 after the country was devastated by a catastrophic magnitude 7.0 earthquake. TPS protection for Haitian nationals has been extended several times over the years due to the poor health and economic conditions and lack of recovery from the disaster.

The Trump administration denied the 18 month extension afforded to Haitians by the prior administration, which indicates that this administration is committed to conducting a thorough review of the TPS program. The six month extension also indicates that the U.S. government is permitting both Haitian nationals and the Haitian government time to get their affairs in order before the TPS designation is no longer renewed.

Haitians seeking to take advantage of the extension must re-register by July 24, 2017, at which time the beneficiary must request a new Employment Authorization Document.

Under both domestic and international law, individuals may seek asylum in the United States if they are fleeing persecution based on certain reasons. When an individual at the border expresses a fear of return to their home country, immigration officials are supposed to refer them to an interview with an asylum officer so the individual can present their case.

Asylum-seekers, however, have recently been facing many obstacles to getting their day in court. First, immigration officials have reportedly been turning individuals away at the border despite their requests for asylum and their statements of fear. Second, many of those that are allowed across the border are placed into detention and then receive inadequate screening. Officers do not always ask individuals if they fear return to their home country or they ignore expressions of fear. In those cases, individuals are subject to ‘expedited removal’ – meaning swift deportation without the opportunity to seek review or see a judge.

Human Rights First issued a report based on a survey of 125 cases of individuals and families denied access at the border in Texas, Arizona, and California. Many of those interviewed stated that border officials told them that the U.S. was no longer granting asylum like before because of the new administration. In reality, though, President Trump has not actually issued any new regulations or policies that would change the way border officers should deal with asylum-seekers. Those expressing a fear of return should, therefore, still have the same opportunity to present their asylum case. Asylum is still being granted, despite what border officials have reportedly been telling asylum-seekers at the border.

Many of those not turned away at the border are immediately placed in detention, including women and children fleeing violence in Central America. Trying to present a claim for asylum while in detention is extremely difficult and legally complicated. The American Immigration Council issued a report describing the most egregious challenges these individuals face. Specifically, the ‘expedited removal’ process has led to many women and children being deported despite having legitimate asylum claims.

Customs and Border Patrol, the department charged with securing U.S. borders, responded by stating that its policies have not changed and they are still complying with their international obligations regarding asylum.

In January 2017, President Trump issued an executive order stating the government would withhold federal funds from jurisdictions that “willfully violate Federal law in an attempt to shield” illegal immigrants from removal. This executive order responded to the growth of the sanctuary cities movement, referring to cities that use formal and informal policies to limit authorities collecting or sharing information about an individual’s immigration status.  Policies may include officers not inquiring about immigration status during encounters or jails refusing to detain illegal immigrants beyond their scheduled release dates when ICE requests. Sanctuary policies have become the subject of controversy throughout the country as people debate whether they actually ensure or threaten public safety.

Advocates argue that sanctuary policies are essential to protect people. If local law enforcement agencies assist with detention and deportation, they could end up alienating immigrant communities and discouraging victims and witnesses from reporting crimes. Many police chiefs are vocal supporters of sanctuary policies, seeing their job as protecting their citizens rather than enforcing federal immigration laws.

Opponents, however, condemn sanctuary policies as obstructing federal efforts to control illegal immigration and permitting dangerous, undocumented criminals to go free. They argue that cooperation between local and federal officials is necessary to crack down on illegal immigration in the US and to ensure the safety of Americans.

This intense debate has been playing out in jurisdictions around the country.

• The LA Police Department has said that it will continue its policy of not allowing officers to stop people solely on their immigration status.
• The mayors of Chicago and San Francisco have both reaffirmed that their cities will always be sanctuaries for immigrants.
• Other jurisdictions, however, are trying to outlaw sanctuary policies. The Governor of Texas signed a bill on May 7, 2017 that banned sanctuary cities, because these policies are basically “harboring people who have committed dangerous crimes.” The bill prohibits cities from enacting laws that prevent officers from inquiring about the immigration status of those they detain and criminalizes failure to comply with federal immigration guidelines.

For the time being, Colorado seems to be falling more on the pro-sanctuary side. None of the county jails honor ICE detainer requests and lawmakers recently vetoed a bill that would have withheld state funds from sanctuary cities. A number of cities have declared themselves sanctuaries or instituted sanctuary policies. With that said, the debate and political turmoil around the country is unlikely to end soon and will continue to impact immigrant communities and the larger American public.

On Tuesday, President Trump unveiled his latest executive order, entitled “Buy American and Hire American,” through which he directs several executive agencies to review the H-1B visa program. Underlining President Trump’s order is the conclusion that buying American-made goods will “promote economic and national security” and “help stimulate economic growth,” and that hiring American workers will “create higher wages and employment rates for workers in the United States.”

Through the H-1B program, USCIS issues 85,000 visas annually to persons with “highly specialized knowledge.” Though Congress designed the program to allow domestic employers to recruit workers from abroad when they could not find qualified domestic laborers, some have argued that the program incentivizes employers to hire foreign-born workers at low wages.

With the intent to address this perceived “widespread abuse,” Trump’s latest order instructs federal agency heads—including the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security—to review the H-1B program and ‘suggest reforms to help ensure that the H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” While the executive order does not actually provide for any changes in the H-1B program, many have seen the order as a first-step towards reform efforts.

Last week, USCIS suspended the premium processing program for H-1B petitions, a program that would normally allow employers to pay extra to reduce the wait time from as long as eight months to only two weeks. Although this suspension won’t affect the number of H-1B visas ultimately issued, it will increase wait times and reduce the amount of funding the agency receives from fees. According to USCIS, the suspension of premium processing will result in up to $100 million in lost fees.

Premium processing began in 2000 in an attempt to both pay for processing and provide needed funds to modernize the agency’s processing system. The modernization program, known as “ELIS,” or Electronic Immigration System, remains over budget and is projected to be completed in March of 2019, five years after its initially scheduled completion date. Without the continued revenue from premium processing fees, however, it is unclear if USCIS will be able to complete the modernization program within the revised timeframe.

President Trump campaigned on a promise to deport 11 million undocumented immigrants and build a wall along the U.S.-Mexico border. And now, through his Fiscal Year (FY) 2018 budget request, as well as his request for supplemental funds for the current fiscal year, the President has identified how he intends to fund those projects.

The budget proposals, released on March 15, would add over $40 billion to the Department of Homeland Security’s (DHS) budget for FY 2017, and would increase DHS’s funding by another 6.8 percent for the FY 2018. Among the priorities identified in the budget increase is the border wall, to which $4.1 billion dollars would be dedicated across 2017 and 2018 fiscal years.

President Trump’s budget proposals represent a softening of his stance on the border wall, which he originally maintained would be entirely paid for by Mexico. Nonetheless, the President’s requests may be insufficient in light of DHS’s report that the wall could cost as much as $21.6 billion, and President Trump’s own statement that the wall would cost at least $12 billion.

Other proposed measures include:

For FY 20176,

• $1.2 billion to increase detention bed space from 34,000 to 45,700, and $350 million to hire additional staff in those facilities.
• $11 million to “establish a real-time data integration system that would support immigration enforcement operations, benefits adjudication, policy analysis, accurate data reporting, and for other border and immigration modeling analyses.”
• $286 million for Customs and Border Patrol Operations and Support.

For FY 2018,

• $1.5 billion increase in funding for the detention, transportation, and removal of noncitizens.
• $314 million to recruit, hire, and train 500 new Border Patrol Agents, as well as 1,000 new ICE agents and support staff.
• $171 million for additional detention space for federal detainees, including “criminal aliens.”
• An $80 million (or 19 percent) increase in EOIR funding allowing the agency to hire 75 new immigration judges.
• $15 million to implement mandatory nationwide use of the E-verify Program, which forces businesses to determine the legal status of new workers.
• Adding 60 additional border enforcement prosecutors and 40 deputy U.S. marshals for the “apprehension, transportation, and prosecution of criminal aliens.”
• Hiring 20 new attorneys to litigate eminent domain suits and claim the land necessary for completion of the border wall.

On Wednesday, a federal judge for the United States District Court for the District of Hawai’i issued a temporary restraining order blocking key parts of President Trump’s revised travel ban from going into effect nationwide. And on Thursday, a judge for the United States District Court for the District of Maryland issued an injunction reinforcing that restraining order.

These rulings represent the latest in a series of exchanges between the President’s administration and the federal judiciary over the constitutionality of his so-called “Muslim ban.”

On January 27, 2017, President Trump issued his administration’s first order barring the admission of travelers from seven predominantly-Muslim countries. This ban, instituted through Executive Order No. 13,769, drew heavy opposition and was ultimately challenged through several lawsuits. The ban was first considered in the judiciary by the United States District Court for the Western District of Washington, which, on February 3, 2017, issued a nationwide preliminary injunction blocking enforcement of the ban.

On February 4, the Government filed an emergency motion with Ninth Circuit, imploring that court to lift the injunction while its appeal of the Washington court’s ruling was pending. When the Ninth Circuit refused to reinstate the travel ban, the Trump administration announced its intent to withdraw its appeal, and instead re-draft the ban that would “eliminate what the [Ninth Circuit panel] thought were constitutional concerns.”

The Trump administration issued its revised order on March 6, revoking Executive Order No. 13,769, yet maintaining its title—“Protecting the Nation from Foreign Terrorist Entry into the United States.” Notably, the revised order eliminated Iraq from the list of countries whose citizens are banned from traveling to the United States, and excluded from its scope individuals who currently hold visas or permanent resident status. On the same date, the administration filed a Notice of Filing of Executive Order with the Washington Court, notifying the parties to that litigation that because the new order “sets forth policies substantially different from the policies in Executive Order No. 13,769,” the Government planned to immediately begin enforcement the revised order on its effective date, March 16, 2017.

One day before the revised order was set to come into force, however, the U.S. District Court for the District of Hawai’i blocked the enforcement of its key provisions. The Court reasoned that state of Hawai’i, acting as the plaintiff, had demonstrated a strong likelihood that it would ultimately succeed on its First Amendment claims of religious discrimination. Stating that it “cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be genuine changes in constitutionally significant conditions,” the Court blocked enforcement Sections 2 and 6 of the revised order, thereby suspending the 90-day travel ban against the 6 enumerated countries, as well as suspending the prohibition against refugee admissions.

The U.S. District Court for the District of Maryland echoed the Hawai’i court’s reasoning, issuing a more limited injunction barring enforcement of the revised order’s 90-day, country-specific travel prohibition. Finding that the Trump administration had drafted that provision with the primary intent of discriminating against Muslims, the Court blocked its enforcement.

Still, the future of the travel ban remains uncertain. In a press conference on Thursday, White House Press Secretary Sean Spicer stated that the Trump administration plans to appeal the Maryland decision to the 4^th Circuit “soon,” and that after seeking “clarification” on the Hawai’i court’s order it may appeal that ruling to the 9^th Circuit. Similarly, the Department of Justice issued a statement Wednesday night announcing that the Department “strongly disagrees with the federal district court’s ruling” and will “continue to defend this Executive Order in the courts.” Meanwhile, the revised order faces challenges in several other courts, including the same Washington district court in which the original executive order was blocked.

On Monday, President Trump signed a revised version of his executive order restricting travel and immigration from six predominately-Muslim countries, as well as temporarily suspending the admission of refugees. The revised order was signed after a federal judge issued a nationwide restraining order on enforcement of the previous order on February 3.

• The revised travel ban removed Iraq from the list of predominantly-Muslim countries whose citizens are banned from travel to the U.S. for a 90-day period. The revised order temporarily bans travel to the U.S. for citizens of Iran, Somalia, Sudan, Yemen, Syria and Libya. Individuals who already hold visas or U.S. permanent resident status are exempt.
• The revised travel ban temporarily halts admission of all refugees to the United States for a 120-day period, and will limit the number of admitted refugees to 50,000 for FY 2017. Although the previous executive order added extra restrictions for Syrian refugees and created a loophole for “persecuted religious minorities” from the predominantly-Muslin countries, the new order omits these provisions.
• The revised order will go into effect on March 16, ten days after it was signed. The initial executive order went into effect immediately, causing confusion and chaotic scenes at airports and ports of entry.

On Tuesday, President Trump told reporters at the White House that he would be interested in working to pass an immigration reform bill that would allow a pathway to status for undocumented immigrants, provided there was “compromise on both sides” of the aisle.

In his speech before Congress however, President Trump made no mention of such a plan, but instead echoed familiar rhetoric associating immigrants with crime. Rather than confirming his interest in providing undocumented persons a pathway to legal status, President Trump suggested that the U.S. immigration system should be reformed towards a “merit-based system,” which would place a priority on prospective immigrants’ skills and employability over their family ties to green-card-holders and U.S. citizens. In support of his merit-based approach, President Trump stated: “It’s a basic principle that those seeking to enter a country ought to be able to support themselves financially, yet in America, we do not enforce this rule, straining the very public resources that our poorest citizens rely upon. Switching away from this current system of lower-skilled immigration, and instead adopting a merit-based system, we will have so many more benefits.”

Trump’s statements represent the latest in a long line of mixed messages regarding his immigration policy. Though he campaigned on a promise to deport 11 million undocumented immigrants and build a wall on the U.S.-Mexico border, he simultaneously stated he was open to “softening” his stance on immigration. During his presidency, Trump has vastly expanded ICE enforcement priorities and has introduced sweeping plans to restrict incoming immigration. And although Trump’s recent statements on immigration reform signal the possibility that he will take a more moderate approach toward the subject, many remain skeptical in light of his record.