Immigration News

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.