DHS

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Retired General John F. Kelly Nominated as Secretary of Homeland Security

President-Elect Donald Trump announced that he is nominating retired Marine General John F. Kelly as Secretary of the Department of Homeland Security.  The Department of Homeland Security is one of the largest Cabinet departments in the federal government and is responsible for enforcing our nation’s immigration laws, among other responsibilities.

General Kelly is a four-star General who was most recently head of the United States Southern Command, a unified Combatant Command located within the U.S. Department of Defense responsible for operations, security, and contingency planning in the Caribbean, Central and South America.  General Kelly also served as the Assistant Commander of the First Marine Division in Iraq in 2003 and 2004 and was named the U.S. Top Commander in Iraq in 2008.  General Kelly is a widely-respected military officer whose son was killed during combat in Afghanistan in 2010.  His combination of military and southern-border experience in addition to his personal experience with the sacrifices inherent in war and combat have been suggested as leading reasons for his nomination.  In order to assume his nominated role as Secretary of the Department of Homeland Security General Kelly will need to be confirmed by the Senate, where he is not expected to face much opposition.

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Further Restrictions for the Visa Wavier Program

The Department of Homeland Security is expanding restrictions to the Visa Waiver Program.  At present, the Visa Waiver Program allows citizens of 38 specified countries to travel to the United States for 90 days or less without first obtaining a visa.  However, a new law established in December 2015 created new travel restrictions to the Visa Waiver Program intended to tighten national security.  This new law made nationals of Visa Waiver Program countries who have traveled to or been present in Iran, Iraq, Syria, or Sudan on or after March 1, 2011 ineligible to participate in the Visa Waiver Program.  Similarly, nationals of Visa Waiver Program countries who are also nationals of Iran, Iraq, Syria, or Sudan are precluded from the Visa Waiver Program.

On February 18, 2016 the Department of Homeland Security announced that it is also including Libya, Somalia, and Yemen on the above-mentioned list of countries of concern.  While individuals who have visited these countries since March 1, 2011 or are dual nationals of these countries are ineligible to participate in the Visa Waiver Program, they may still apply for a visa to enter the United States at a U.S. consulate or embassy.  If entry on the Visa Wavier Program is in the best interest of national security or law enforcement, an applicant can also apply for a waiver of these travel restrictions from the Department of Homeland Security.

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House of Representatives Passes Bill to Fund the Dept. of Homeland Security

After months of debate and anxiety, the House of Representatives voted this week to fully fund the Department of Homeland Security, or DHS.  DHS is the federal agency charged with managing border security, customs, emergency management, and counter-terrorism intelligence. The vote the week prevents the agency’s shutdown and will keep DHS fully funded until the end of September. The bill passed with a 257-167 vote and is expected to be quickly signed by President Obama.

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The Omnibus Spending Bill Passes Congress and Goes to President Obama

This weekend the Senate approved a $1.1 trillion bill to prevent a government shutdown and keep the government up and running for another year.  The bill, which passed 56-40 with both bipartisan support and opposition, notably does not fund the Department of Homeland Security.  The move to withhold funding from the Department of Homeland Security is an attempt by Republicans to put pressure on President Obama to withdraw his recently announced Executive Order.  If Congress can’t pass a funding bill by February 27, 2015, the Department of Homeland Security will shut down.

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Democrats from the House of Representatives Condemn DHS’s Family Detention Program

This week, thirty-two Democrat House Representatives led by Representative Zoe Lofgren from California signed a letter sent to President Obama to express their concerns regarding DHS’s potential expansion and continuation of Family Detention.  At present, DHS operates three family detention centers across the country:  Artesia, Karnes, and Berks.  These three facilities house more than 1,000 women and children, many of whom are fleeing from persecution in their home countries.  DHS is considering opening a fourth family detention facility in Dilley, Texas in the near future.  As proposed, this facility would have the capacity to house approximately 680 women and children with a possible expansion to 2,400 beds in 2015.

Representative Lofgren’s letter to President Obama raises three chief concerns with the current operation of family detention that would be exacerbated through the opening of the Dilley Facility. These concerns include: 1) no-bond or unreasonably high bond determinations; 2) discrepancies in credible fear rate; and 3) the absence of child care in the above-mentioned family detention facilities.

Given these concerns, Democratic Representatives urge President Obama to put a stop to the expansion of family detention through the Dilley Facility until these primary concerns are adequately addressed and corrected.

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DHS Report Proposes Reduction of L-1 Visas

An August report by the Department of Homeland Security has proposed reducing the number of available L-1 visas, which is not currently capped. The report by the DHS’s Office of Inspector General suggests that L-1 visas could be used to avoid the more restrictive H-1B visa process, although there is no definitive evidence that this is currently occurring.  In fact, H-1B visas are more highly sought than L-1 visas and have been for years.

The intent of the L-1 visa classification is for  a U.S. employer to transfer an executive or manager from one of its  foreign offices to one of its U.S. offices and may also be used by foreign companies to establish a new U.S. office. There are two types of L-1 visa, the L-1A for executives/managers and the L-1B for those with specialized knowledge. The nebulous definition of what constitutes “specialized knowledge” is another issued raised by the report.  L-1 visas also have perks that H-1B visa do not, such as the ability for dependent spouses to receive work authorization while in the U.S.

Since L-1 visa applications can be presented for adjudication to Customs and Border Patrol (CBP) officers along the U.S.-Canadian border instead of being submitted to a USCIS office, the report also scrutinized whether CBP officers sufficiently trained to review the applications. While the CBP contends that its officer are properly trained, they have agreed consider training recommendations outlined in the report.

Stern & Curray will continue to monitor the impact of this report on L-1 visa applications. More information about this visa classification can be found under Employment Visas.

 

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Amended Policy Regarding False Claims to Citizenship

The Department of Homeland Security and the Department of State have outlined an amended policy regarding false claims to citizenship.  From now on, a person will only be found to be inadmissible for making a false claim to citizenship if the claim was “knowingly made.”  The burden of proof remains with the individual to provide an affirmative defense.  Additionally, the policy states that persons who were under 18 years old at the time of making a false claim to citizenship may use their minor status as a defense based on the premise that they are unable to fully grasp their actions. This policy shift is a helpful move forward so that people are not inadvertently found to be inadmissible for mistakenly claiming to be a U.S. citizen.

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